WHY A NEW CULTURAL INSTRUMENT?

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 financial institutions make the situation worse by limiting the ability of nations to support their own artists, cultural producers and institutions.
Trade and financial institutions such as The World Trade Organization (WTO) and the International Monetary Fund (IMF) evaluate the support of cultural producers according to commercial criteria: are these measures a distortion of free trade principles? are they contrary to structural adjustment policies?
“Exempting” culture from trade rules has been ineffective in preserving cultural sovereignty. Rules written 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 concept of a global cultural pact has emerged as a serious initiative since it was first introduced a few years ago. This proposal is known now as the New International Instrument for Cultural Diversity (NIICD).
The NIICD would be designed to promote cultural diversity and to provide a legal foundation for government actions directed at achieving it.

IS THERE A DRAFT OF THE NIICD?

NO, the concept is at the developmental stage. A number of governments and many non-governmental organizations support it in principle, but each has a different idea about what it might mean in practice.
But, there are existing international agreements and covenants that address some of the issues. These can be found in a paper prepared for the International Network for Cultural Policy (INCP), “Catalogue of International Principles Pertaining to Culture.” The documents are organized around the themes of cultural rights as basic rights, preservation of cultural heritage, protection of copyright, circulation of cultural goods and services, culture as a component of development, dialogue among cultures and international cultural cooperation, co-production and cultural dissemination, cultural policy, artists and cultural creators (status and circulation) and promotion of linguistic diversity. See www.incp-ripc.org , (choose Working Group, choose Working Group on Cultural Diversity and Globalization, Choose Supporting Documents, choose Catalogue, or go directly to http://64.26.177.19/w‑group/wg‑cdg/index_e.shtml#documents).
While many groups and activists in the cultural sector embrace the idea, there has been no discussion at the national level in most countries and no coordinated global dialogue about what it would contain or how it could benefit the community.
Work on the NIICD is only beginning and it will be some time before we will see a consensus emerge about key issues, including content, where it is to be negotiated and where it will be housed after implementation.

HOW THE NIICD IS BEING DEVELOPED

· Several organizations have begun to elaborate potential content of the NIICD, including UNESCO, the network of culture ministers (the INCP) and others. UNESCO has released a Draft Declaration on Cultural Diversity to be considered at the September 2001 General Council meeting (release date Sept. 15, see www.unesco.org/exboard)

There have been important statements from the G-8, the Francophonie, the European Community and other regional leaders that give impetus to the initiative.
The September 2001 meeting of the INCD in Lucerne will be an opportunity for key players to discuss the issues and determine how to promote the development of the NIICD.
The meeting between the INCD and the culture ministers on 24 September will be the first opportunity for the non-governmental network to share its views on the instrument with its ministerial counterpart. Other treaties, such as the Treaty on Landmines, were successful largely because of the collaboration between governmental and non-governmental networks.

WHAT SHOULD BE IN THE NIICD

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

· But, to be an effective buffer from the trade agreements, the NIICD 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 NIICD can also enunciate the rights of artists, such as freedom of expression and the right to produce and distribute their work. It can speak to responsibilities of media conglomerates, which include maintenance of diversity of editorial opinion and journalistic points of view.

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

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

WHO WILL NEGOTIATE THE NIICD AND WHERE WILL BE HOUSED?

UNESCO is part of the UN system, with responsibility in this field. But its declarations tend to be very broad and may not have the binding power we are seeking. Some argue that an instrument negotiated at UNESCO would be ineffective, because the U.S. is not a member – however, many agreements function effectively without US participation.
The INCP, which brings together culture ministers from more than 40 countries, has launched a significant effort to elaborate the potential content of the NIICD. But can cultural ministers alone create an effective treaty, and can they convince other levels of their governments to endorse such a treaty? Since it has no culture minister, the U.S. is not involved in the INCP.
The WTO is a forum for global negotiations. But many of the principles of the NIICD are directly contrary to those underpinning the existing WTO agreements, and it is hard to see how an agreement designed in part to limit the powers of the WTO could be negotiated by it.
Creating a new international forum to negotiate such an instrument would seem to be a difficult challenge, but this was done successfully for purposes of the Landmines Treaty. It could also be done through the UN, although this requires a broad initial consensus among key governments and may take more time.

ISSUES TO CONSIDER FOR THE NEGOTIATING FORUM AND BEYOND

Whatever forum is selected for the negotiations, it must allow full participation of civil society and non-governmental organizations in the process.
To be effective, the NIICD will need a dispute settlement process. The agency or institution that houses the pact when it is implemented must have the capacity to administer such a process and the necessary support from member states.
The dispute settlement process must be fashioned specifically for the cultural sector and should provide opportunities for civil society involvement.

IS A CULTURAL INSTRUMENT ACHIEVEABLE?

YES. There are successes in other fields that provide a positive precedent, including the Biosafety Protocol, the agreement on persistent pollutants and the Landmines Treaty. The Tobacco Control Agreement currently being discussed at the World Health Organization may provide useful lessons.

For a more detailed analysis of the issues, challenges and opportunities for the New International Instrument for Cultural Diversity, refer to:

A New International Instrument on Cultural Diversity, Questions and Answers,

prepared by Canadian academic and lawyer, Yvan Bernier.

Background material prepared for the INCP’s Lucerne meeting will be available in Lucerne and may be posted on-line before. After September 14, please check the INCD website, www.incd.net for the latest information.

International Network for Cultural Diversity Secretariat, 31 August 2001