M. Ivan Bernier, professeur associé à la Faculté de droit de l’Université Laval de Québec-Canada, membre du groupe d’experts indépendants de l’UNESCO, août 2004 - 2004/08
In this study commissioned by the Intergovernmental Agency of the Francophonie (AIF), Ivan Bernier circumscribes the goal of the convention: “The convention addresses ‘the protection of the diversity of cultural contents and artistic expressions.’ Its purpose is not to protect cultural diversity at large (i.e., encompassing aspects as diverse as the sum of distinctive traits distinguishing a society or group, or in other words, culture in the sociological sense, cultural rights, cultural heritage in all its forms, copyright, cultural expression, multiculturalism), but rather a specific aspect of cultural diversity, the diversity of cultural contents and artistic expressions. This is not to say that the convention has no relation to these other aspects of cultural diversity. However, to the extent that a relation is established, it must contribute to achieving convention goals. A number of these other aspects of cultural diversity […] have already been taken into consideration in other conventions. Should amendments or additions to these documents be required, it is not the role of the future convention on the protection of cultural contents and artistic expressions to make them. The expression ‘diversity of cultural contents and artistic expressions’ found in the title has been interpreted as referring to the diversity of cultural expressions in a broader sense. It is this terminology, defined in consequence, that is used throughout the convention.”
In looking at the general thrust of the preliminary draft convention, Mr. Bernier draws attention two fundamental aspects related to form and substance. Regarding form, the preliminary draft is composed of a preamble, six chapters, and four annexes. The first two chapters, respectively entitled “Objectives and Guiding Principles” and “Scope of Application and Definitions,” circumscribe the scope of the convention. Chapter 3, which deals with the rights and obligations of states parties, is the instrumental section, and sets out the means to achieve convention objectives. It is subdivided into two sections, the first on rights and obligations at the national level, and the second on rights and obligations at the international level. Chapter 4 is composed of single article on the relationship of the convention to other international instruments. Chapter 5, entitled “Follow-up Bodies and Mechanisms,” describes the mechanisms required for convention implementation and measures that will give the convention binding force. The sixth and final chapter, entitled “Final Clauses,” assembles a series of provisions typically found in international conventions concerning issues such as ratification, accession, entry into force, denunciation, amendments, authoritative texts, and registration. As for the annexes, the first two are composed of illustrative lists that provide a more complete definition of the “cultural goods and services” and “cultural policies” referred to in Chapter 2. The last two annexes spell out the arbitration and conciliation procedures envisaged under the convention.
Regarding substance, Bernier notes that the draft convention is a response to the observation in the preamble to the effect that “while the processes of globalization, which have been facilitated by the rapid development of information and communication technologies, afford unprecedented conditions for enhanced interaction between cultures, these same processes also constitute a threat to diversity and carry with them a risk of impoverishing cultural expressions.” The response is structured around several mutually supportive basic ideas that shed light on how the convention will work:
In the second part of his study, Mr. Bernier provides an exhaustive annotated analysis explaining how these ideas have been transposed in the draft convention. Overall, he notes that “the draft convention has the merit of providing states and their experts with a clear text that addresses the main problems related to the protection and promotion of the diversity of cultural expressions and suggests concrete, and sometimes quite innovative solutions. Even more importantly, the text is the product of extensive discussion by experts from the principal regions of the globe and represents a wide variety of approaches to culture. In this respect, it can be viewed as a relatively accurate reflection of the concerns that will undoubtedly surface during the new round of negotiations that is about to begin. Evidently, the text is not above criticism and is sure to spark numerous demands for changes, additions, and even omissions. However, the fact remains that the convention makes no attempt to skirt controversial issues and, in terms of both structure and substance, provides a useful base for the next phase in negotiations.” (Available in French)