CONVENTION ON CULTURAL DIVERSITY

Where can it be negotiated? How will it be administered?

Section 1 - INTRODUCTION

At previous meetings of the International Network for Cultural Diversity, members have agreed that a key objective is to work for the implementation of a new Convention to provide a permanent legal foundation for government measures that promote cultural diversity. Importantly, the Convention would need to ensure that disputes between states about trade in cultural goods and services would be dealt with under its terms, rather than the trade agreements administered by the World Trade Organization. To further this objective, we released our own draft of what such a Convention could look like which we will discuss in Cape Town.

As well as looking at the potential content of what we call the Convention on Cultural Diversity, Cape Town delegates will need to examine the mechanics of implementing such a Convention. In what forum could it be negotiated? What administrative mechanisms are needed to make it an effective barrier against the trade agreements? How would national governments achieve agreement to sign and ratify the Convention? Resolving these issues is key to ensuring the viability of the project.

This paper reviews the possibilities being discussed within the INCD and raises questions for consideration by the delegates.

Section 2 - POTENTIAL VENUES FOR NEGOTIATING/HOUSING CONVENTION

UNESCO

• part of the UN system, with responsibility in this field
• able to convene a significant international meeting and might permit NGO involvement in the negotiating process
• its declarations are broad and generally are not legally binding on signatories
• US recently rejoined, perhaps in part to participate in UNESCO’s “consideration of the opportunities of a legally binding instrument” on cultural diversity
• might be unable to act decisively before WTO concludes Doha negotiations, however, the January 2005 WTO deadline is itself unrealistic

International Network on Cultural Policy (INCP)

• has culture ministers from 48 countries, but may be insufficient number to make a treaty viable and effective
• has launched a significant effort to elaborate the potential content of a Convention (what they call a new instrument), will have a first discussion on the text in Cape Town and will reach final conclusions on it in 2003
• should be capable of drawing other states into the debate when the necessary momentum has been developed
• culture ministers alone may be unable to create the treaty, since they are junior in most government structures
• since it has no culture minister, the US is not involved formally in the INCP, but US involvement may not be required

World Trade Organization

• is a forum for global negotiations of legally binding treaties
• consensus model of decision-making give equal voice to all member countries, at least in theory
• its principles include overriding importance of commercial considerations, and goal of liberalized trade at any cost
• its dispute resolution panels are held behind closed doors and are inaccessible to interveners
• difficult to imagine how an agreement designed to limit the powers of the WTO could be negotiated by it

New Forum

• creating a new forum to negotiate and house such an instrument would seem to be a difficult challenge, but this was done successfully for purposes of the Landmines Convention
• a new forum requires an appropriate administrative structure to negotiate and administer treaty – secretariat, executive structure, offices, funding

These options are not mutually exclusive – for example, it might be feasible to develop the instrument as a “stand-alone” document, through the INCP, but with the objective of having it taken over by UNESCO. Whatever option is supported by civil society, it must permit full involvement of civil society in the negotiating process and in the dispute settlement system.

Section 3 - CONSIDERATIONS OF INCP WORKING GROUP ON CULTURAL DIVERSITY AND GLOBALIZATION

The INCP Working Group established a sub-committee to consider governance issues. The initial paper is based on the three models of governance most commonly presented: to pursue the instrument within the World Trade Organization, within UNESCO, or to formulate it as a “stand-alone” agreement.

The WTO is seen to be a difficult choice given its aggressively commercial outlook and due to the fact that the instrument (Convention), while having certain commercial considerations, is designed from a cultural perspective. The WTO has struggled with the relationship between its agreements and environmental treaties that similarly go beyond narrow commercial considerations. While UNESCO is weighted down with lengthy bureaucratic practices, it is seen as the “benchmark agency best able to enhance the standing of the instrument.”

But UNESCO faces a significant timing problem, even if the political will existed, it would be impossible for it finalize an instrument before January 2005, when the WTO is scheduled to complete its Qatar Round of trade negotiations. UNESCO is presently committed only to considering “the opportunity of an international legal instrument.”

Creating a stand-alone agreement has the attractive feature of speed, given its flexible and ad hoc nature and would also ensure the content of the instrument would not be subject to external pressure. However, this option necessitates the construction of an environment for the instrument and an institutional framework would need to be built to support the monitoring and dispute settlement processes.

The paper also addresses the possibility that the instrument could become a “cultural shore” from which a bridge could be built to the WTO, or that the instrument could be “admitted” to the UNESCO system.

In looking toward a conclusion, the INCP Committee states that the impediments in the way of utilizing either the WTO or UNESCO in the short term, are “more significant than the obligation to create a ‘structure’ and establish a ‘representativeness’ so that the instrument can evolve as a stand-alone entity.” Thus, it points clearly in the direction of developing the instrument initially within the INCP.

Section 4 - RECOMMENDED INCD APPROACH

To date, the INCD has worked in all of the arenas for the development of the instrument. We presented our initial thoughts to the INCP Working Group meeting in May 2002 and attended the WTO Ministerial meeting in Doha, Qatar last November. We continue to be involved with the UNESCO cultural diversity process. All of this work must continue.

The INCD and its members should continue to work at the national, regional and international levels to achieve a broader consensus among governments and civil society organizations around the need for a convention.

Once it becomes clearer which body has the will and capacity to bring the instrument into existence, civil society needs to concentrate its forces on that avenue. It is crucial that the principles elaborated in the INCD draft are understood and incorporated by the eventual governing body.

20 September 2002