Vol. 4, no 32, Monday, September 20, 2004
Response to the preliminary text of UNESCO’s Convention on the Diversity of Cultural Expression
Mobilization around the preliminary draft convention on cultural diversity continues. On Monday, September 20 the first meeting of intergovernmental experts opened in Paris to give UNESCO’s 190 member countries an opportunity to express their views on the preliminary draft Convention on the Protection of Cultural Contents and Artistic Expressions made public by Director-General Koïchiro Matsuura on July 15. The director general’s preliminary report and the draft text are available for consultation along with the provisional agenda and rules of procedure for the meeting at:
Earlier, on September 14, the French Coalition for Cultural Diversity, in cooperation with the International Liaison Committee of Coalitions for Cultural Diversity (ILC-CCD), organized an information seminar at UNESCO’s Paris headquarters on the preliminary draft (http://www.comitedevigilance.org/archives_actus.htm ). The seminar provided experts involved in preparing the draft with an opportunity to present the document’s key points to the professional organizations concerned and to representatives of the 190 member states that will debate the document. Visitors to the Website of the French coalition will find a seminar summary, a briefing note on convention issues, the ILC-CCD cover memo and position on the preliminary draft, and a list of ILC member coalitions by country.
Coalition française : http://www.comitedevigilance.org/index.htm
AFP : http://actu.voila.fr/Depeche/depeche_culture_040914135118.0c7hd5dr.html
Along with this meeting, on September 16 and 17, the Working Group on Cultural Diversity and Globalization also held a meeting in Paris attended by members of the International Network on Cultural Policy (INCP), which brings together ministers of culture from 53 states and governments. This meeting preceded the UNESCO intergovernmental experts’ meeting on the draft Convention on the Protection of Cultural Contents and Artistic Expressions.
This edition of our newsletter examines at some of the latest studies that have been made available to countries preparing for the negotiations on the draft convention. These studies look at proposals to be made under the UNESCO framework regarding the draft project and are intended to clarify matters surrounding the development of a universal regulatory framework on cultural diversity for states and governments.
IN THIS ISSUE :
Le Comité International de Liaison des coalitions pour la diversité culturelle, Paris le 14 septembre 2004 - 2004/09/14
The press release issued at the conclusion of the meeting reported that experts and artists debated the future UNESCO convention on the protection cultural contents and artistic expressions. Artists and cultural professionals expressed their “unconditional support for the UNESCO process, even though they would like to see the text reinforced as it is finalized over the year ahead in order to provide legal protection for cultural diversity and ensure culture is exempted from trade negotiations.” The press release also states that “the cultural community emphasized that the convention must focus on the right, indeed the obligation, of states to establish cultural policies that enable national cultures to exist and to travel, and individuals to have access to their own culture and foreign cultures as well.” Furthermore, representatives from organizations of cultural professionals “urged states to support and strengthen the draft convention and to adopt it at the next UNESCO General Conference in fall 2005.” (Available in French) 
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) 
Mme Hélène Ruiz Fabri, professeur à l’Université Paris I – Panthéon Sorbonne, Août 2004 - 2004/08
In this study commissioned by the Intergovernmental Agency of the Francophonie (AIF), Hélène Ruiz Fabri writes that given the current status of the process, the plan to present and even adopt the convention at the UNESCO General Conference in fall 2005 is still realistic. As for the consultations undertaken with the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO), and the UN Conference on Trade and Development (UNCTAD), Ms Ruiz Fabri points out that “it was in the interest of take existing legal instruments into account in developing the draft convention that the [UNESCO] director-general was instructed to undertake consultations with these organizations. They were chosen because they are in charge or have in-depth knowledge of the international legal instruments most likely to interfere with the standard-setting initiative undertaken by UNESCO. The goal of the consultations is to identify areas where standards may come into conflict […]. These consultations are not negotiations under which UNESCO must reach agreement with the organizations or bodies consulted as to what it can or cannot do. UNESCO has no legal obligation to act on the comments received. However, as the organization that initiated consultations, it should consider the feedback received in good faith.”
Ms Ruiz Fabri also notes that in the case of the WTO, the consultation process will invest any WTO comments with considerable authority, given their source and the organization’s status as an intergovernmental body. Despite the UNESCO director-general’s wish in his preliminary report that “the member states of both institutions [UNESCO/WTO] have plenty of time to express consistent and concerted views, following consultations within each member state,” Ms Ruiz Fabri stresses the importance of consistency and argues that “individual states must take steps to ensure that positions expressed during WTO discussions—even in a purely consultative framework—do not come back to haunt them during UNESCO negotiations.” Questioning the nature and significance of the exercise for states that belong to both organizations, she notes that they have, and will have, the opportunity to express their positions on the draft treaty at the forum where it is being negotiated (the competent authority for the negotiations). She also points outs that “in terms of form, this could be an opportunity to foster greater coordination between international organizations. Although still rare and relatively ineffective, such cooperation is growing increasingly necessary in light of globalization.
The second half of the study deals with general observations showcasing what Ms Ruiz Fabri considers the most difficult points. In examining these points, she analyzes the structure of the draft text, its philosophy, objectives, and content, and the its relationship with international law. (Available in French) 
M. Francisco d’Almeida et Mme Marie Lise Alleman, Association Culture et développement, aôut 2004 - 2004/08
This report was written for the Intergovernmental Agency of the Francophonie (AIF) and the High Council of the Francophonie by Francisco d’Almeida and Marie Lise Alleman, in cooperation with Bernard Miège and Dominique Wallon. According to its authors, it is “the product of the first comprehensive attempt to assess the economic importance of the cultural industries of the South. It is a starting point for understanding the economic, institutional, and cultural realities facing cultural industries in the southern nations.” The authors chose to work with a selection of sectors and countries whose macroeconomic and social indicators are representative of the situation in the South. Acknowledging the importance of statistical data for such a study, they note that “one of the results of our work is to reveal the shortage of comprehensive data on these industries and the need to harmonize data collection procedures in order to arrive at a common ‘model’ for the international community.” In this regard, they argue that there is an “urgent need for a program on the economic aspects of culture in the southern countries, since the lack of information available to government authorities and professionals is one of the obstacles to the development of cultural industries.
The report is based on the postulate that “the possibility for all peoples to express their vision of life through their artistic works and cultural expressions, and to have access to those of others, is a primordial public good that must be preserved and developed. However, due to their failure to recognize the economic and social contribution of cultural industries, few southern nations, especially in francophone Africa, have public policies supporting these industries.” The study’s authors have three objectives: identify indicators to measure the current or potential economic contribution of cultural industries; pinpoint structural obstacles to the development of cultural industries that require public policy solutions; explore the economic and cultural rationale for an international convention on cultural diversity.
In their study, the authors reach the conclusion that the diversity of cultural industries in the South (e.g., structural differences in distribution networks, orientation toward domestic markets, limits on competitiveness in external markets) precludes their characterization as a homogenous entity. Government strategies and public policy initiatives must therefore take diverse forms. The priority is to structure an economic, legal, and technical environment that creates the conditions conducive to local production that contributes to the national economy and cultural diversity. In this light, government strategies and public policies are a decisive factor in strengthening cultural diversity. International cooperation and solidarity could contribute to the development and implementation of strategies and policy through sector action plans drawn up on a country-by-country and region-by-region basis. Impending negotiations on the draft convention on cultural diversity are of vital importance for the countries of the South. The issue for these nations is to legitimize public policy to generate visibility and ensure the economic viability of their cultural products. The analysis of the draft convention shows that through its objectives and its special provisions for the developing countries, it represents a vital asset for the development of southern cultural industries and the promotion of cultural diversity both at the global and national levels. According to the authors, by actively contributing to finalizing and signing the convention, the countries of the South, will guarantee the viability and dynamism of their cultural industries and gain from intercultural exchange and dialog. (Available in French) 
Coalitions en mouvement, Bulletin des coalitions pour la diversité culturelle, Vol. 2, no. 5, septembre 2004 - 2004/09
In this issue of its newsletter, the International Liaison Committee of Coalitions for Cultural Diversity (ILC-CCD), announces that the countdown has begun at UNESCO as member states prepare to debate the UNESCO draft convention on cultural diversity content. The organization, witch has been accorded observer status for the UNESCO intergovernmental negotiations process, believes that the proposed draft text «represents a workable starting point for discussions and negotiation». However, it acknowledges that there is a definite need to strengthen key articles, including «those dealing with the rights of states to have cultural policies (articles 5 and 6), the clause spelling out the responsibility of states to uphold the objectives of the convention in other international fora (Article 13), and the key article establishing the relationship of the convention to other international agreements (19). It also calls for changes in the wording of certain clauses it feels could weaken the convention or divert it from its objectives if left in their current form. The organization also emphasizes how important it will be for cultural organizations in each country to lobby not only their culture minister, but also their head of state and government, their foreign affairs minister (generally the minister to whom both UNESCO and WTO ambassadors report), and their international trade minister. It believes that «country-by-country mobilization and lobbying would be key to securing an effective convention». It also contends that «this reinforces the importance of cultural organizations in each country taking the lead to advance this issue within their own country and concentrating their impact wherever possible by joining together in coalitions that bring cultural organizations from all sectors (…) to speak on this issue with one voice».
ILC-CCD sees a parallel between the resumption of WTO negotiations and the international context for developing the UNESCO convention, which according to the organization, has changed significantly by the recent breakthrough at the WTO that led to a successful relaunch of the Doha Round negotiations. For ILC-CCD, «it is worth noting that the work program document for the resumption of these talks emphasizes that there should be no a priori exclusion of any sector of services from the negotiations—meaning cultural services are in the mix unless each member state specifies otherwise». In this regard, the organization warns, «we must keep sight of the May 31, 2005 , deadline for tabling initial liberalization offers in the Doha negotiations. This deadline shows how the UNESCO and WTO processes are now on virtually parallel tracks, and heightens the importance of countries refraining from making liberalization commitments affecting culture in all trade negotiations during the period when the UNESCO convention is being developed, adopted and ratified».
This warning is even more justified by the fact that since the launch of the campaign for the adoption of a convention on cultural diversity, pressure continues to be exercised on various countries through bilateral free trade negotiations «to accept serious limitations to their ability to have cultural policies», as shown by «the ambitious program of bilateral trade negotiations launched by the United States over the past five years». The organization therefore urges cultural organizations to « persuade their governments of the importance of refraining from commitments on culture in trade negotiations during the critical period when the convention is being developed, adopted and ratified». According to ILC-CCD, key negotiations to will be those involving the Andean Pact countries as well as bilaterals involving South Africa and Thailand.
In the meantime, ILC-CCD continues to build its cultural diversity campaign through further expansion. Newly established coalitions in Benin , Belgium Colombia, Germany , Peru , Togo and Uruguay have brought to 18 the total number of coalitions, joining Argentina , Australia , Burkina Faso , Canada , Chile , France , Korea , Mexico , Morocco , New Zealand and Senegal. ILC-CCD notes that «the new coalitions have wasted no time taking action to advance the cultural diversity file in their countries». (Available in French, English, Spanish) 
Bulletin du RIDC, Vol. 5, no 7, septembre 2004 - 2004/09
In this edition of its newsletter, the International Network for Cultural Diversity (INCD) presents Mexico’s position on the UNESCO draft Convention on the Protection of Cultural Contents and Artistic Expressions. It notes that the Mexican government tends to take a consensual position on the convention. The National Council for Culture and the Arts (CONACULTA) recently held a meeting in Mexico City with various civil society organizations that was also attended by Rafael Segovia, a member of the RIDC Executive Committee, and Gabriel Larrea, a representative of the Mexican Coalition for Cultural Diversity. Discussions covered some of the more sensitive points in the convention, notably the article on the document’s relationship with other treaties (Article 19), the status of artists (Article 6) and the article on international cooperation and differentiated national treatment (Article 17). At the meeting, CONACULTA asked civil society organizations for strong support in its negotiations with government economic and financial agencies. It also agreed to support certain amendments to the draft convention proposed by INCD. (Available in French)