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Draft Convention on Cultural Diversity
This draft Convention was prepared on behalf of the INCD. It attempts to express the principles of
INCD statements and communiqués (Santorini, 2000 and Lucerne, 2001) in the terms of a binding international agreement on cultural diversity.
The State Parties to the present Convention,
Desiring to maintain and strengthen the capacity of all sovereign states to preserve and enhance cultural diversity, and to ensure their capacity to develop and implement measures to support diversity of artistic, linguistic and cultural expression, within and among nations; and taking into account the potential impediments to these goals that may arise from international trade, investment and services disciplines,
Desiring to promote the full social, human and economic aspects of cultural diversity;
Acknowledging the need to increase the exchange of ideas, information and expression around the world;
Recognizing that support for artistic expression and cultural production can be an important tool of sustainable economic development;
Acknowledging that many forms of artistic and cultural expression have value, meaning and importance for human societies greater than their commercial value as goods and services;
Recognizing that the rights of individual artists and creators to practice their craft in security and freedom are fundamental human rights;
Endorsing the right of artists and creators to freedom of expression and freedom from censorship;
Recognizing that freedom of information and freedom and pluralism of the media are preconditions for diverse cultural creation and exchange;
Recognizing that there is a clear link between cultural diversity and identity, pluralism of ideas, human and societal values and sustainable development;
Confirming that there is a special need to preserve the cultures and traditional knowledge of indigenous peoples;
Confirming the importance of preserving languages as reservoirs of thought, history and knowledge;
Recognizing also the special needs of the less developed country members for maximum flexibility in the domestic implementation of laws and regulations in order to achieve the objectives of this Convention;
Recognizing the need for effective and appropriate means for preventing and settling disputes concerning measures adopted in accordance with the provisions of this Convention;
Desiring to establish a mutually supportive relationship with the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO), and the United Nations Educational, Scientific and Cultural Organization (UNESCO); and
Emphasizing the need to ensure that the implementation and enforcement of international disciplines concerning trade in goods, investment, services and intellectual property, not occur in a manner that may undermine, or derogate from the rights and obligations of Parties to this Convention.
Hereby agree as follows:
Objectives and Purposes
1. The objectives and purposes of this Convention are to:
(a) establish a multilateral framework of principles, rules and disciplines for the purpose of preserving and enhancing cultural diversity both within and among nations;
(b) maintain and strengthen the capacity of sovereign states to preserve and enhance cultural diversity by taking actions, or adopting, maintaining and enforcing
measures to preserve or enhance cultural diversity;
(c) secure the rights of individual artists and creators to freedom of expression and to work in security and
free from censorship,
(d) promote the exchange of ideas, information and artistic expression around the world; and
(e) provide effective and
appropriate means for preventing and settling disputes concerning measures adopted in accordance with the provisions of this Convention.
Definitions
2. Subject to the proviso that such measures are consistent with the objectives and purposes of this Convention, and conscious of the
often unique characteristics of the social, linguistic, economic, educational, recreational, ecological and aesthetic values that are inherent to cultural diversity, nothing in this
Convention shall be construed to limit the sovereign authority of a Party to define such terms and concepts as “culture”, “cultural diversity”, and “indigenous or national culture” in a
manner it considers appropriate to the characteristics of its particular society.
3. Subject to the same proviso, and for the purpose of defining the
“diverse” rather than “like” characteristics of cultural goods and services, a Party may distinguish between goods and services based upon the:
(a) distinct indigenous, and national forms of cultural expression;
(b) country of origin of the artist or cultural producer;
(c) character, content, language or
informational characteristics of such goods or services; or
(d) any other qualities or features that are relevant to preserving and enhancing diverse forms of cultural expression.
General Commitments
4. Each Party shall, in accordance with its particular conditions and capabilities:
(a) develop national strategies, plans or programs for the preservation and enhancement of cultural diversity or adapt
for this purpose existing strategies, plans or programs which shall reflect, inter alia, the measures set out in this Convention; and
(b) integrate, as far as possible
and as appropriate, the preservation and enhancement of cultural diversity into relevant economic, international trade, social and environmental policies and programs.
5. Each Party may from time to time adopt and implement appropriate measures, provided that they are consistent with the provisions of this Convention, that
it considers necessary to preserve or enhance cultural diversity, or address practices which unreasonably interfere with, or undermine, the objectives of this Convention.
6. Each Party shall respect, preserve, maintain and support linguistic diversity, and the diverse forms of cultural expression practiced by aboriginal,
indigenous and local communities within its society, including those embodied in traditional lifestyles.
7. Understanding the importance of
transparency each Party shall, in accordance with its particular conditions and capabilities, publish all relevant measures of general application which pertain to or affect the operation
of this Convention and also establish one or more inquiry points to provide specific information on all such measures.
Supporting Cultural Diversity
8. Each Party undertakes to provide, in accordance with its capabilities, financial support and incentives in respect of activities which will achieve the
objectives of this Convention. These measures may include, but are not limited to: procurement practices; the provision of subsidies and grants; or the granting of any advantage,
favour, privilege or immunity, including tariff and/or tax preferences.
9. These financial supports and incentives may be allocated in a manner which
accords special, preferential, or more favourable treatment to indigenous, or national forms of cultural expression where the Party considers that such measures will support or achieve
the objectives of this Convention.
10. Such financial supports and incentives may be provided directly or indirectly to individuals, institutions, state enterprises,
associations, non-governmental organizations or cultural enterprises.
11. The developed country Parties may also provide, and developing country Parties avail themselves of,
financial resources related to the implementation of this Convention through bilateral, regional and other multilateral channels.
12. The Parties shall take full account of
the specific needs and special situation of less developed countries in their actions with regard to funding the international exchange of cultural goods and services.
Investment, Competition Policy and Procurement
13. Each Contracting Party shall, in accordance with its particular conditions and capabilities, integrate, as far
as possible and as appropriate, the objectives of this Convention with relevant investment, and competition measures, and may for such purposes prohibit or limit foreign investment in the
cultural sector; or where investment is made in cultural undertakings, maintain, adopt or enforce any of the following requirements:
(a) to achieve a given level or percentage of domestic content; [i]
(b) to purchase, use or accord a preference to goods produced or services
provided in its territory, or to purchase goods or services from persons in its territory;
(c) to restrict sales of goods or services in its territory that such
investment produces or provides;
(d) to enter into independent, co-production, or co-distribution agreements; and
(e) that members of the board
of directors or senior management be nationals of that Party.
14. For greater certainty, nothing in this Convention shall be construed to prevent a Party from adopting,
maintaining or enforcing measures to ensure that investment activity in its territory is undertaken in a manner sensitive to concerns and policies concerning cultural diversity.
15. A Party may adopt procurement policies and practices which favour or accord preferences to indigenous and national cultural goods and services in order to preserve or enhance
cultural diversity.
Cultural Goods and Services
16. Each Party shall ensure that all measures of general application established to preserve and enhance
cultural diversity both in and among nations, are administered in a reasonable manner, but nothing in this Convention, or any other International Agreement to which it may be a Party,
shall be construed to prevent a Party from adopting, maintaining or enforcing measures that accord special, preferential, or more favourable treatment to indigenous or national goods and
services for the purpose of achieving the objectives of this Convention.
17. Each Party undertakes to establish, in accordance with its capabilities, measures intended to
preserve and enhance cultural diversity, and foster the exchange of ideas, information and artistic expression regionally, nationally and internationally, which may include measures
relating to:
(a) qualification requirements and procedures, technical standards and licensing requirements with respect to cultural goods and services;
(b) limitations on the number of cultural service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic
needs test;
(c) limitations on the total value of cultural service transactions or assets in the form of numerical quotas or the requirement of an economic needs
test;
(d) limitations on the total number of cultural service operations or on the total quantity of service output expressed in terms of designated numerical units in
the form of quotas or the requirement of an economic needs test;
(e) limitations on the total number of natural persons that may be employed in a particular
cultural service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of numerical quotas or the
requirement of an economic needs test; and
(f) measures which restrict or require specific types of legal entity or joint venture through which cultural
goods or services are supplied.
The Role of Public Cultural Institutions
18. In recognition of the vital role that governments have to
play in providing cultural goods and services, each Party may, in accordance with its particular conditions and capabilities, establish institutions, such as museums, theatres and
libraries; language and/or heritage programs which it considers necessary to achieve the objectives and purposes of this Convention.
19. Each Party may establish, endow or
empower state enterprises, monopolies, and other publicly governed institutions to provide cultural goods and services, such as arts education and funding, film development, and public
service broadcasting.
Relationships With Other Agreements
20. Nothing in this Convention shall derogate from existing obligations
that Parties may have to each other under the Paris Convention, the Berne Convention, the Rome Convention, the WIPO Copyright Treaty, the WIPO Performances and Phonograms Treaty and the
Treaty on Intellectual Property in Respect of Integrated Circuits.2
Dispute Settlement [Discussion]
The INCD Lucerne
declaration calls for a new international instrument on cultural diversity to ensure that the agreed limits are respected by providing a binding and enforceable system of review that is
appropriate for the cultural sector. Given the incipient stage of this discussion, rather than attempt to settle on a particular model for enforcement, the following discussion
seeks to identify some of the features of such a dispute regime, and describe a few of the models that have been adopted for the purpose of resolving international disputes in other
contexts.
The features of the dispute resolution mechanism should:
· establish a fully transparent dispute resolution process;
· emphasize the consensual resolution of disputes;
· provide for intervention by interested third
parties, including non-governmental organizations;
· allow for the protection of individual as well as corporate
rights, including non- commercial rights such as freedom of artistic expression;
· provide an effective incentive for nations to become
Parties to the Convention, and thereafter to comply with its requirements;
· require that local remedies be exhausted before recourse is
sought to any international dispute resolution process; and
· ensure that adjudicators, mediators, and arbitrators are
competent; that is, possess the specialized expertise needed to address the full social, aesthetic, as well as commercial characteristics of cultural goods and services.
As
for the mechanisms that might be established to provide for binding dispute resolution under the Convention, these may include both domestic and international institutions or bodies. For
instance, enforcement of the Convention might be invested in a domestic institution as a complement, or even as an alternative, to international institutions.
It may also be
appropriate to establish more than one dispute resolution regime for the purpose of ensuring compliance with the Convention. For example, for the protection of the individual rights of
the artist, which are analogous to basic human rights, European human rights conventions provide a model. For the commercial interests of transnational corporations, a different approach
would be needed, perhaps one modelled on the labour and environmental side-accords to the North American Free Trade Agreement (NAFTA).
The following options represent an
illustrative, rather than comprehensive list of the models for dispute resolution that might be considered.
Possible Prototypes
Council of Europe - Convention for
the Protection of Human Rights and Fundamental Freedoms - is widely regarded as the most robust international regime for the protection of human rights. The European Court of Human rights
presides over disputes arising under the Convention which may be initiated by a Party or individuals. The court may allow third party interventions, must as a rule conduct hearings in
public, and publish its judgments. The court has the authority to afford just satisfaction to the injured party, which includes the right to award damages. The Inter-American Court of
Human Rights, has similar characteristics.
Optional Protocol to the International Covenant on Civil and Political Rights - has features similar to those of the Council of Europe
Convention - but with respect to remedies is limited to forwarding its views to the State Party concerned and to the individual complainant. It provides neither for enforcement nor
sanctions when its advice is ignored.
International Covenant on Economic, Social and Cultural Rights - Under the Covenant, States Parties are obliged to send periodic reports to
the United Nations Economic and Social Council (ECOSOC) documenting their compliance with the objectives of the Covenant. A Committee on Economic, Social and Cultural Rights was
established in 1987, but it has weak implementation authority, and few nations pay more than lip service to their obligations under the Covenant.
UNESCO Conciliation and Good
Offices Commission - was established for the purposes of resolving disputes between parties to the Convention against Discrimination in Education. In 1978, UNESCO established a procedure
to handle individual communications alleging violations of human rights. Deliberations are confidential, as are reports to the Executive Board. While hundreds of complaints have been
processed, the strict confidentiality that obscures the process makes evaluating the efficacy of this regime difficult.
NAFTA - Side Agreements on Labour and Environment - the
focus of these adjuncts to NAFTA is to make certain that the Parties enforce their respective environmental and labour laws. However, neither side agreement mandates a minimum threshold
of environmental or labour rights protection. Nevertheless these regimes have features that may have some appeal. For example, the functions of these institutions include the powers
of investigation and reporting. Their procedures are relatively transparent, and both institutions engender specialized expertise and competence.
NAFTA - Chapter 19 Remedies -
under Chapter 19 of NAFTA, bi-national arbitral panels assume the role of domestic appellate courts with respect to applications for judicial review of domestic administrative
determinations. This approach would restrict the role of international adjudicative determination to the question of whether domestic rules were fairly applied - leaving the substance of
domestic law and regulation to the sovereign determination of the Parties.
Domestic Remedies - both the General Agreement on Trade in Services (GATS), and the Agreement on Trade
Related Aspects of Intellectual Property Rights (TRIPS) mandate the establishment of domestic judicial and administrative procedures that might be a complement, or an alternative to
international judicial procedures. In both instances, international dispute procedures complement these domestic regimes.
The WTO Dispute Resolution Body – formal international
trade dispute resolution under the WTO involves a relatively opaque but formal process for resolving international trade disputes. Sanctions, which usually take the form of trade-related
measures, such as compensating tariffs, may be extremely onerous.
Resolving Potential Conflicts with Other Treaties
The INCD has registered concern about the
potential of international trade, services and investment disciplines, such as those set out in various agreements of the World Trade Organization (WTO), to interfere with or impede the
full realization of the goals of this Convention. Because the provisions of these WTO agreements and those of this draft convention may apply to the same subject matter, there is a
potential for conflict. Moreover, and as indeed has already occurred, trade and investment disputes may arise under the auspices of international trade bodies that concern government
measures also subject to this draft Convention.
However, it is important to keep in mind that much of the potential for conflict in this sphere is incipient and might yet be
averted. In this regard, it is possible to conceive of the relationship between this Convention and the rules of trade liberalization in three ways:
(a) as being fundamentally incompatible and therefore in need of harmonization;
(b) as not being in conflict, and therefore capable of co-existence, or
(c) as being potentially compatible if dispute resolution and implementation decisions are made in a manner that is sensitive to, and willing to accommodate the
goals of cultural diversity.
Of these, it may be unrealistic to regard the respective agendas of trade liberalization and cultural diversity as being essentially compatible.
However, it is possible that potential conflicts might be averted if the goals of cultural diversity are given legitimacy under the WTO and other trade regimes. With this qualification in
mind, the following describes some of the options available for avoiding and/or ameliorating the potential conflicts that may arise in this context.
New Commitments
The most important strategy for reducing the potential for conflicts between this Convention and the disciplines of the WTO and other trade, services and investment Agreements, is to
ensure that no further commitments are made under the former that might undermine the objectives of this Convention. While the application of the trade in goods provisions of the GATT to
forms of cultural expression remains problematic, disciplines concerning tariffs, services, investment, procurement and competition policy are of greater concern. The next two years will
be critical in determining whether negotiations will get underway on these subjects. The failure of the most recent WTO Ministerial Declaration adopted in Doha, Qatar to acknowledge the
importance of cultural diversity is worrying. A similar agenda is at play in regional trade liberalization initiatives, such as the Free Trade Area of the Americas initiative where
Ministers have recognized the importance of cultural diversity, at least in hortatory terms.
Qualified Commitments
Alternatively, if commitments to new
disciplines are being considered, it would be important to ensure that any new obligations exempt measures that may be required to protect and enhance cultural diversity. For example, the
listing process for service sector commitments under the GATS allows WTO members to qualify those commitments in virtually any manner they deem appropriate. However, given the
demonstrable bias of trade dispute bodies to read such reservations and exceptions very narrowly, and other pitfalls, considerable caution is needed if this approach is taken.
Exclusions
The GATT and other trade agreements set out various exceptions to the disciplines established by these regimes. Several of these concern matters of culture and
cultural diversity. For example, Article IV of the GATT establishes an exemption concerning screen quotas. Article XX(f) of the GATT establishes an exemption for certain measures imposed
for the protection of national treasures of artistic, historic and archaeological value. The North American Free Trade Agreement carries forward a cultural "exemption” from the
Canada-US Free Trade Agreement.
The most broadly framed and robust exemptions under both NAFTA and the WTO rules are reserved for National Security measures. For example
Article XXI of the GATT preserves the right of any WTO member to take any action which it considers necessary for the protection of its essential security interests. The establishment of
such exclusions may become the quid pro quo for any future commitments. [ii]
Political Statements
The recent Declaration concerning the Agreement on Trade
Related Aspects of Intellectual Property Rights and Public Health adopted by the WTO Ministerial Meeting in Doha, provides another alternative to resolving potential conflicts between
this Convention and international trade agreements. While this particular declaration lacked legally binding language, it is nevertheless expected to 1) exert a salutary effect on
Members that might be contemplating a formal challenge, and 2) ameliorate the coercive effect that the threat of such disputes may have on members who may take a more conservative view of
the ambit of TRIPS disciplines. It is also reasonable to expect this statement to influence the views of WTO dispute bodies.
Co-operation
The Convention on Biological Diversity formulates this objective in this manner:
“The Parties, recognizing that international agreements such as those of the WTO and regional
trade agreements may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure
that such rights are supportive of and do not run counter to its objectives.”
Conversely the WTO imports a reasonably detailed procedural code for managing its relationship
with the International Monetary Fund. More recently, the Doha Declaration underscored the importance of strengthening the relationship between the WTO and United Nations bodies with
respect to environmental matters.
i It is important to distinguish between content quotas as they might be applied to goods and services that are traded
internationally, and content quotas as a condition of the right to invest in domestic cultural industries. In the case of the former, excessively high domestic content requirements
could prevent international exchange of cultural goods and services and thus undermine the goal of enhancing cultural diversity. In the case of domestic investment, this is much
less likely to be the case. In either case, the Parties to the Convention may wish to qualify the right to impose content requirements with a view to not unnecessarily interfering
with international cultural exchange.
ii Among the other mechanisms for exempting measures from the application of trade disciplines are waivers and
safeguards. Waivers may be granted by the Ministerial Conference of the WTO in exceptional circumstances (Article IX of the Agreement Establishing the WTO). Such a waiver was
recently granted to the European Community, allowing it to give preferential market access to exports from certain former colonies under the Cotonu Agreement (replacing the Lome
Convention). Waivers are restricted in their ambit to trade in goods, must be approved by a three-fourths majority of WTO members, and are subject to periodic review. Safeguard
measures may be adopted where the imports of a product occur in such increased quantities as to cause or threaten to cause serious injury to the domestic industry that produces like or
directly competitive products. The WTO Agreement on Safeguards sets out detailed procedures to be followed where such measures are adopted, and imposes time limits of the period for
which such measures can be applied.
This Draft Convention on Cultural Diversity was prepared for the INCD by Mr. Steven Shrybman, an international trade lawyer with
the Canadian firm of Sack, Goldblatt and Mitchell.
Comments, responses and feedback are encouraged and can be sent to the address below.
International Network for Cultural Diversity
c/o Canadian Conference of the Arts
804 – 130 Albert Street,
OTTAWA, ON Canada K1P 5G4
incd@ccarts.ca
tel: 1.613.238.3561
fax: 1.613.238.4849
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