de Cinéma et de Télévision
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September 2003
State of the debate: Culture,
Trade, UNESCO and the WTO
Over the past year, the
debate around an international treaty on cultural diversity has grown and is
now taking place within institutions.
During its 166th
session in April, 2003, UNESCO’s Executive Council considered the possibility
of elaborating a standard-setting instrument on cultural diversity, based on a
preliminary study prepared by the Secretariat of UNESCO.
The Executive Council
responded favourably and recommended to the General Conference of UNESCO,
scheduled to meet in October 2003, “that it take a decision to continue action
aimed at drawing up a new standard-setting instrument on cultural diversity and
to determine the nature of that instrument.”
The General
Conference, during its 32nd session in October 2003, must decide if the issue
of cultural diversity should be made the subject of an international
convention. If the response is positive - and there is good reason to believe
it will be - a draft of the convention could be submitted to the 33rd General
Conference, in the fall of 2005. This draft convention would need to address,
as is well known, the protection of diverse cultural content and artistic
expression.
At this point, it must
be noted that UNESCO has already prepared a remarkable analysis of the “state
of affairs” as well as a synthesis of existing international laws in the area
of culture and cultural rights.
I invite you to
consult this document on the web site of UNESCO - document 32C/52, July 18,
2003.
On another front, the
Commission of the European Communities - the executive arm of the 15, soon to
be 25, members of the European Union - approved, on August 27, 2003, a
communication directed to all of its member states, indicating the willingness
of the European Union, in solidarity with member states, to participate in the
discussion within UNESCO.
At the moment, it is
not possible to predict what will be the response of the General Conference but
there is reason to believe that it will be favourable and will allow for
substantive work to begin on the Convention.
However, we are far
from the end of the struggle. In fact, a decision by the UNESCO General
Conference in favour of taking on the international convention will put us
squarely into the reality of treaty law: imagining - and in large part -
inventing international law for the protection and promotion of cultural
diversity.
It is important to
note that the INCD, among many other stakeholders, was one of the first to
formulate a proposal for an instrument in the form of a treaty, and has the
judicial and political knowledge to help guide this process. There will not
only be expert, legal work to be done, but also lobbying and advocacy work.
On the basis of the
draft convention to be prepared by the Secretariat of UNESCO - which we hope
will conform closely to our concept of a convention - a permanent committee of
member states at UNESCO will need to decide on the propositions.
We know, of course, as
is unfortunately the case at the World Trade Organization (WTO) and, to a
lesser degree, at the World Intellectual Property Organization (WIPO), that
developing and least-developed countries, while important participants in the
international arena, are often faced with considerable obstacles, including
technical restrictions, which prevent them from fully participating in these
debates and expressing themselves in international fora.
I propose that the
INCD put on its agenda the issue of relations with countries from the South, in
light of their participation in the negotiating process of the convention text
in UNESCO.
International law, especially
in the case of international law around culture, must not be constructed on the
frustration of the disadvantaged. It is not necessary for the less-developed
countries to be the only centre of attention.
What principles must
be incorporated into a Convention?
We do not lack for
sources of inspiration for the elaboration of this Convention. Both the INCD
and the INCP have already developed their own visions of what should constitute
a Convention on Cultural Diversity.
I will now propose a
few ideas (from my perspective) on what form the Convention should have.
Firstly, it must
contain formal definitions of cultural policy, cultural expression, cultural
goods and services as well as cultural diversity. Secondly, the objectives of
the Convention must be clearly defined in order to recognize the specificity of
cultural goods and services and to preserve the rights of signatories to the
Convention to take measures related to the preservation of cultural heritage,
the development of cultural expression, the promotion of cultural diversity,
and to reinforce cultural cooperation globally.
Thirdly, general
principles must be established, such as transparency (to ensure the
transparency of the cultural policies of each signatory.)
The link between fundamental
rights, such as freedom of expression and freedom of information, must be
underscored.
In terms of
intellectual property, it is important to remember that the Convention should
not cause prejudice to the full exercise of existing international law (the
combination of the WIPO and TRIPS treaties.)
This holds true also
for the protection of human rights, which must not be affected by the proposed
treaty.
It is equally
important to address the catalogue of measures and policies put into place in
the name of cultural diversity:
w
Cultural policies
w
Regulations on
cultural goods and services by member states
w
Measures related
to financial support.
International
cooperation must be included in the scope of the Convention. In fact, member
states should base all promotion of cultural diversity on the development of
cooperation.
If the mechanisms of
the Convention are to be effective, all member states must abstain from making
any commitments in other international arenas that could be contrary to the preservation
and promotion of cultural diversity.
In order to ensure
harmony in the functioning of the Convention, it is important that all
signatories adopt a common approach with regards to this issue.
Measures related to
information, monitoring and expertise should be outlined in the Convention.
Each beneficiary party
to the Convention must identify the measures and policies dedicated to the
preservation and promotion of cultural diversity, while keeping in mind the
definition of cultural goods and services. Any measures subsequently adopted
must be communicated to the other Parties to the Convention for evaluation.
It may also be
judicious to consider adopting some of principles of the Doha Development
Agenda in this agreement.
So that it is understood,
the current cycle of negotiations at the WTO is dedicated to the promotion of
sustainable development through trade mechanisms.
It seems indispensable
that the Convention incorporate principles that facilitate the access of
cultural goods and services from developing countries to the markets of
developed countries. We could consider, in this regard, the exemption of
customs duties on cultural goods coming from developing and least-developed
countries.
Other policies, such
as encouraging the establishment of bilateral co-production treaties in the
film and audio-visual sectors (giving access to domestic subsidies), as well as
measures related to training creators and cultural sector professionals,
providing assistance for the development of local cultural industries and
promoting initiatives to support local cultural production should be included.
A sensitive area
requiring close scrutiny is that of the relationship between this Convention
and other instruments of international law.
This Convention cannot
modify the rights and obligations already in place for a signatory to an
existing international agreement unless the exercise of these rights or respect
of these obligations would have a seriously negative impact on cultural
diversity or would constitute a threat to the existence of cultural diversity
itself.
It is equally
important that, in order to give full weight to the exercise of the rights and
obligations included in this Convention, it contain a mechanism for dispute
resolution.
These briefly outlined
principles signify, as I see it, the general framework of an international
Convention on Cultural Diversity.
The Convention springs
from the concern to regulate, or control globalization. While globalization can
either be deplored or considered as a positive factor, it is nevertheless an
objective historic reality. The speed of the circulation of information and the
flux of financial affairs, the multiplication of all manner of exchanges and
their negative consequences - all this renders the search for global coherence
more and more necessary. This coherence will only come as a result of the
establishment or reinforcement of the rule of international law as a regulating
mechanism.
From this point of
view, the mechanism of the envisioned Convention seeks to construct an
autonomous sphere within international law favourable to the protection and the
promotion of cultural diversity.
Clearly, this
initiative is not simple, since any affirmation of cultural diversity should have real judicial weight (without
which the initiative will be in vain), and legally-acceptable connecting points
between this affirmation and the exercise of this law and the rest of
international law should be established - and here, I am thinking specifically
of the enormous machinery necessary to produce the rules constituting the WTO.
Referring to the
Convention, I have demonstrated the necessity not to make in other
international fora any commitment that could be constraining for the preservation
and promotion of cultural diversity.
This particularly
concerns the process of liberalization of services in the WTO. It is vital to
repeat that if governments unconditionally liberalize all audio-visual and
cultural “services”, it will have two consequences:
w
They will be
forced to abstain from future regulation of their cultural and audio-visual
sectors. Liberalization can be seen as a full renunciation of the right to act
in that respect.
w
Also, they will
be subjected to the full and complete rule of the WTO, and in particular, of
its judicial body, the Dispute Settlement Body.
Consequently, it seems
very important that, in the period prior to the establishment of a Convention
at UNESCO that would seek to define the full reach of international law over
cultural diversity, States wishing to be party to this Convention but which are
also members of the WTO and the General Agreement on Trade in Services (GATS)
abstain from all commitments in the audio-visual and cultural sectors.
In the same vein,
bilateral and regional free trade agreements that demand liberalization in
either all or a portion of the audio-visual and cultural sectors would make
recourse to the Convention on Cultural Diversity useless for the parties to
those treaties.
Currently, we have
reached a difficult stage, where pressures from trade negotiations to accede to
the offers of liberalization in the WTO threaten to worsen the problems of
weaker members of the international community. Should countries move in this
direction, they might lose the benefits of a Convention that would help them
protect their cultural sovereignty.
It is vital that the
nature of current affairs such as the discussions at UNESCO and the
implications of the WTO be clearly understood and that you act as a voice on
this issue with public decision-makers and with the cultural communities in
your own country.
Yvon THIEC