CONVENTION ON CULTURAL DIVERSITY

A new international instrument to provide a permanent legal foundation for government measures that promote cultural diversity

30 August 2002

This paper is a summary of the debate within the membership of the INCD on the content and context of the draft Convention on Cultural Diversity. It is intended to help to focus and guide the discussions at the October 11-13 meeting in Cape Town and assist delegates to achieve consensus on the unresolved issues. It takes into consideration work done on other drafts of the instrument, notably by the International Network on Cultural Policy’s (INCP) Working Group on Cultural Diversity and Globalization.

With agreement by the INCD, the proposed Convention will reflect the interests of artists and cultural workers around the world and be put forward as a critical element of a broader debate underway among governments, intergovernmental institutions and others.

While discussion about the terms of the possible Treaty will continue both within and outside the INCD after October, the Cape Town meeting will be an important milestone in the effort to achieve a global cultural pact.

Background

• At its meetings in Santorini in 2000 and Lucerne in 2001, the INCD determined to work to achieve a Convention. Draft terms were developed by the Steering Committee and released to members in March 2002. Following member input and revisions, the Draft was publicly released in May 2002.
• The Working Group of the INCP was presented with the initial INCD Draft when it met in May 2002. The INCP received this with great interest and expects to approve its own Draft Instrument when it meets in October 2002 in Cape Town.
• In its 2001 Declaration on Cultural Diversity, UNESCO’s General Council resolved to consider “the opportunity of an international legal instrument.”
• Important statements from the G-8, la Francophonie, the Council of Europe and the Organization of American States highlight cultural diversity and give impetus to the initiatives.
• Work on the Convention is still in its early stages. Groups and activists in the cultural sector around the world have begun to embrace the concept and discussion on key issues is ongoing. These will culminate at the Cape Town meeting and hopefully permit a civil society consensus to be reached.
• Key governments will continue to push the initiative, and it is not unreasonable to expect significant discussions over the next three years. The objective is to conclude the terms of a legally binding instrument before the WTO completes its Doha round of trade negotiations.

Why Is A New Cultural Instrument Needed?

• There is a growing awareness that aspects of globalization are leading to cultural homogenization and increasing the difficulties for indigenous cultural production.
• Trade agreements and international institutions such as the WTO and IMF 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” are big business, accounting for a growing share of the trade balance of several countries. Thus agencies such as the WTO and IMF increasingly evaluate the support of cultural producers according to commercial criteria: Do these measures distort free trade principles? Are they contrary to structural adjustment policies?
• “Exempting” culture from trade rules has been ineffective in preserving cultural sovereignty. Rules implemented for traditional goods and services have been applied to cultural activities by trade panels.
• Pressures are growing in global, regional and bilateral agreements to have trade rules govern important cultural sectors. The audiovisual sector is at risk in the WTO General Agreement on Trade in Services (GATS) talks, and the U.S. is applying bilateral pressure on several countries to modify significant cultural policies.
• Artists and cultural organizations around the world have been increasingly working together on these issues, notably during the fight against the proposed Multilateral Agreement on Investment (MAI) and since the 1998 UNESCO Stockholm Conference on Culture for Development. The World Social Forum has begun to deal with cultural issues.
• The concept of a global cultural pact has emerged as a serious initiative since it was first introduced a few years ago. The proposed international instrument for cultural diversity is designed to promote cultural diversity and to provide a legal foundation for government actions directed at achieving it.

Developing the Content

Last year in Lucerne, delegates to the INCD meeting agreed on a number of principles for the Convention:

· A clear link is needed between cultural diversity and identity, freedom of expression, freedom of information, pluralism of ideas, human rights, human and societal values and development, preservation of languages and traditions.

· But, to be an effective buffer from the trade agreements, the Convention must be much more than a statement of principles, however fundamental they might be. It must articulate the legitimate role governments can play to support culture and artistic expression.

· The Convention must enunciate rights of artists, such as freedom of expression and the right to produce and distribute their work.

· The Convention needs to be explicit about how states can support cultural diversity. An appropriate dispute settlement process will ensure that agreed limits are respected.

· Overall, the Convention must encourage states to provide appropriate support for their own cultures and thus add to global cultural diversity.

This year, the task of delegates to the INCD meeting is to judge how well the draft has come to these principles and to examine the proposed terms in detail. While the whole range of issues is open to discussion, the following section summarizes the key issues around which the debates have revolved since the Draft was first prepared.

The paper also begins the comparison of the INCD Draft with a draft of a possible instrument prepared for the Working Group of the INCP and obtained by the INCD in September 2002. While the Working Group document is available, its release has not been authorized by the INCP. It is likely the Ministers will receive a version that has been amended from the text analyzed below.

THE TEXT OF THE CONVENTION ON CULTURAL DIVERSITY

Architecture of the Convention

The INCD Draft is structured and written in a manner similar to Trade Agreements. Since an important objective of the Convention is to ensure that countries refer disputes about commercial transactions related to culture to this Convention rather than the Trade Agreements, the language of the trade world may be an advantage. Certain sections of the INCD Draft use such language explicitly, for example, the article on Investment, Competition and Procurement.

The Working Group document on the other hand, looks and feels more like an international cultural agreement with language similar to UNESCO declarations. Others believe this approach is advantageous, since support of the cultural world is the first step in developing the formal commitment from the critical mass of countries required to make it effective. Some believe that using such language will help preserve the instrument from compromise by trade officials.

Scope of Government Authority

The Convention or Treaty will be an instrument through which sovereign governments agree with each other to do and not to do certain things. In its Lucerne Statement, the INCD said that each government should be free to define culture and cultural diversity in a manner appropriate for its citizens.

1. Many argue the Draft Convention provides an unhindered ability for governments to act in the name of promoting cultural diversity and thus could authorize acts that stifle diversity and creativity and are contrary to democratic principles. The INCD Draft contains some specific limitations on government authority, including respect for “the right of artists to freedom of expression” and the need for government measures to be “reasonable.”
2. The Working Group document on the other hand may have fewer substantive limitations on the right of governments to adopt measures in the name of cultural diversity. For example, this draft merely “acknowledges” the importance of freedom of expression, and permits a Member State to “question” the policy of another if it causes it “serious prejudice.” On the other hand, it explicitly prohibits the use of the Convention in a manner that infringes on human rights. Others point out there is no connection between some of the statements of fundamental principles outlined in the preamble and the substantive provisions of this proposed instrument.
3. Others insist these limitations are inadequate and would not guarantee that the fundamental principles behind the initiative are respected. Some see the language as protectionist and exclusionary, rather than encouraging diversity and free exchange.
4. Some propose the Convention list measures that would be considered a priori to be consistent with the terms of the Convention and another list of measures that would be considered a priori to be inconsistent with the Convention. The Working Group document has taken this approach in Chapter 3. Some of these provisions are contained in the INCD Draft, see for example Articles 13-17, in language that is adapted from the trade agreements and thus may not be entirely obvious in cultural terms.

Positive Commitments

The INCD has stated it is concerned about promoting diversity within nations, as well as between them and that it supports more balanced exchange between cultures. The INCD also seeks special recognition of the need to “to preserve the cultures and traditional knowledge of indigenous peoples” and supports special rules for the least developed countries and emerging states. The INCD Declarations address the need to promote linguistic diversity. All of these are seen as positive commitments that governments could make when they become signatory to the Convention.

1. Some argue the Draft Convention, while recognizing these principles in various sections, fails to provide the necessary incentives or obligations in these respects and that the Convention otherwise does not establish the necessary mechanisms to ensure these commitments are met substantively.
2. The Working Group document appears to have similar deficiencies in providing positive commitments that are meaningful. In addition, there is no explicit reference in it to the special needs of indigenous peoples, or the need to ensure diversity within nations.
3. Some argue that Convention might be used to legitimize cultural acts that are abhorrent to modern sensibilities, and contrary to human rights, such as the destruction of the cultural icons of others, or female circumcision. They argue all commitments should respect fundamental human rights, a concept the INCD drafters believe is sufficiently covered in the Draft Convention.

Definitions

The INCD Draft Convention does not define its terms, other than implicitly. The Working Group document on the other hand contains a limited number of definitions, including of “cultural diversity” and “cultural expression.”

1. Some argue there should be definitions of “culture” and “cultural diversity,” since this would provide an objective test against which government measures could be judged. The Working Group document may thus provide a limitation on the sovereign right of Member States, since it establishes some benchmark in this respect. Others argue it is impossible to agree on definitions, or that the definitions themselves would need to be culturally specific.
2. The INCD Draft starts from the perspective that these issues are best left to each Member to define. But some are concerned about this approach, since that would enable certain governments that oppress cultural communities within their borders to use definitional powers to authorize this oppression.
3. Still others argue the lack of specificity is critical to ensuring there will be enough countries prepared to commit to the terms to make the process viable.
4. There is a related debate around other definitions, including “artist,” “artistic expression,” or “cultural industries.” There is considerable concern about using any language such as “cultural goods or services,” since that could prejudice aspects of the discussion about trade issues. Some argue special attention should be played to the concept of linguistic diversity, since others would consider it beyond the scope of cultural diversity.
5. Part of this debate has been characterized as how broad or narrow should be the scope of the Convention. Some note that the primary problem the Convention is attempting to solve is the limitation on the right of governments to support their cultural industries. Others insist the Convention must be far more than that, if it is to attract the number of countries necessary to permit its implementation, particularly in the face of the likely opposition from the United States and the pressure it will apply bilaterally on other nations.

Dispute Settlement

The Convention is designed to be enforceable and countries would chose to resolve disputes about cultural issues, including those that are trade-related, through its processes, rather than those of the WTO or other trade agreements. Exactly how this can be accomplished is not entirely certain, and the INCD Draft presents a range of options for discussion. Each of these options has strengths and weaknesses, and there is yet no consensus around the best approach.

1. Some argue the Draft Convention has not yet succeeded because none of the options guarantees that countries would adjudicate disputes under its terms.
2. The Working Group document also has alternative proposals, but each is a far more explicit dispute settlement system than the INCD Draft, with at least an outline of the formal institutional arrangements necessary to administer such a system. One of the proposals could involve referral to the International Court of Justice. Under these proposed systems, there is no guarantee of input from third parties and non-governmental organizations, no explicit acknowledgement that the rights of individual or equivalent to corporate rights and no agreement to a transparent process, all of which are important principles the INCD has adopted.
3. On a more substantive level, some argue there is little in either document that would permit States to trigger the dispute settlement process, since there are few positive obligations that States assume on ratifying the proposal nor significant objective tests against which measures taken in the name of cultural diversity can be judged.

CONCLUSION

This paper is not designed to reach a conclusion. It attempts merely to review some of the comments filed in response to the release of the Draft Convention earlier this year. It cannot be comprehensive, since the formal and informal responses were extensive. Its attempt to categorize some of the themes of the rich diversity of opinion expressed in this process is merely an effort to focus the next stage of the debate in a manner that can help the INCD to achieve consensus. It is not meant to limit or stifle debate on any issue.

Hopefully, this paper will help the delegates to achieve the objective and reach consensus on the terms of a Convention on Cultural Diversity. This will help civil society to engage governments and their agencies in the debate about why we need a Convention and about what it should contain. In turn, this will help ensure that a sufficient number of countries will sign on when a text is agreed among governments, to permit its effective implementation.