Vol. 6, no 28, Monday, August 28, 2006
Convention on the Protection and Promotion of the Diversity of Cultural Expressions: The mobilization in order to promote its ratification is building growing momentum!
The Québec Minister of Culture and Communications Line Beauchamp and the UNESCO Director-General Koïchiro Matsuura
Speech by Québec prime minister Jean Charest
Photo : Paul Ducharme
IN THIS ISSUE :
The Convention on the protection and promotion of the diversity of cultural expressions will enter into force three months after the date of deposit of the thirtieth instrument of ratification, acceptance, approval or accession, but only with respect to those States or regional economic integration organizations that have deposited their respective instruments of ratification, acceptance, approval, or accession on or before that date.
From now on, seven (7) countries have formally ratified and deposited their Instruments of ratification with the Director General of UNESCO: Canada, Mauritius, Mexico, Romania, Monaco, Bolivia, and Djibouti (Source: UNESCO).
Ten (10) other States have already concluded their internal ratification processes and are expected to file their instruments with UNESCO in short order: Togo, Peru, Senegal, Mali, Burkina Faso, Cambodia, Croatia, France, Finland and Austria.
In addition, several other countries have their ratification processes well underway such as Belgium, Moldavia, the Popular Republic of Congo, Norway, Spain, Brazil, Madagascar, Chile, among other (source: Coalition Currents )
As we mentioned it in the last edition of our Bulletin, the distinction between ratification of the convention and deposition of the relevant instruments with UNESCO is crucial: a member state is only deemed to be a State Party to the Convention when it has ratified and filed its documentation with UNESCO’s Paris headquarters. Moreover, there is a clear incentive for the UNESCO Member State to ratify early: those that do will be among the participants at the first Conference of Parties, which will elect the initial 18-member Intergovernmental Committee that will be charged with developing the operational mechanisms of the Convention. The Intergovernmental Committee members therefore stand to have a major role in setting the direction of the new Convention.
This is the reason why we must continue with the mobilization campaign, in order to promote the ratification of the Convention with the UNESCO Member States to reach the target of the 30-ratification threshold by the end of next June. If we reach this goal, the Convention will enter into force through its first Conference of Parties at the time of the 34th UNESCO General Conference in October 2007.
In this edition, we emphasize the recent publication of two papers that contribute, in its own particular way, to the efforts made by civil society representatives, in order to promote the ratification of the UNESCO Convention with the international community.
The Journal of International Economic Law just published in its August 8th edition a paper written by Mr. Christoph Beat Graber (Professor of Law, University of Lucerne, Switzerland) in which he questions himself if the new UNESCO Convention on the diversity of cultural expressions can be served as a cultural counterbalance to the World Trade Organization (WTO).
In this paper, where he underlines the ambitious role assigned to the Convention by its proponents - to fill an existing lacuna for cultural objectives in public international law and to serve as a cultural counterbalance to the World Trade Organization in future conflicts between trade and culture – the author endeavours to explain how cultural diversity has become an issue of international law, provides a critical assessment of the strengths and weaknesses of the Convention and explores in particular the possible linkages between the Convention and the WTO.
According to the author, the adoption of the new Convention is of the utmost significance with a view to potential conflicts between trade and culture arising in the WTO framework. Although the Convention does not impose enforceable responsibilities on the Contracting Parties, it may be seen as a first step towards the achievement of a more coherent international legal order, where not only economic but also other societal values, such as cultural diversity, are taken seriously. There is an opportunity for the Convention to be used as a point of reference when the definition of boundaries between trade and culture is discussed in future WTO trade negotiations or dispute settlement procedures. This potential is however not a given but needs to be developed and strengthened, both by affirmative action of the Convention Parties and within the WTO structure.
Hence, the author thinks that it is very important, as a first step, that all signatories to the Convention build the necessary political momentum to speed up the ratification process to allow the Convention not only to come into force but also subsequently to play its intended role as a counterbalance to the WTO in matters of artistic and cultural expressions.
Within the framework of its progress report about the impact of globalization on the culture in Québec, the Laboratoire d'étude sur les politiques publiques et la mondialisation (LEPPM) of the ÉNAP publishes a study prepared by Mrs. Jacinthe Gagnon in which she explores the challenges and possibilities of the Convention for Québec. According to the author, if it is difficult right now to evaluate the impacts of this Convention on national cultural policies, however we can verify the States’ sensibility level concerning the parameters established by this Convention inasmuch as we observe in the signatory States a tendency to put cultural issues in the first place and take measures in favour of the cultural diversity. This will also allow them to legitimate their interventions in cultural matters, sending at the same time a political message about their engagement towards the protection of cultural diversity.
Considering that the emergence of new information and communication technologies will lead to a government action that will be concretized by the elaboration of new policies and laws aimed to regulate the concerned sectors (telecommunications, copyright, media, electronics), based on Convention’s provisions, she emphasizes that these policies could be influenced by negotiations about services liberalization in process to the WTO. From this point of view, she says: “the critical date” when the Convention will enter into effect is extremely important because it will allow member States to protect its spheres of activities thanks to the Convention’s provisions.
In addition, she describes, in the following terms, the challenges of the ratification of this Convention may face: “If it is true that the Convention may represent the response to juridical vagueness concerning the relation between trade and culture, it is necessary to elaborate a jurisprudence favourable to the protection and promotion of the cultural diversity. This jurisprudence will take into consideration at the same time the provisions related to commercial agreements and to the Convention, and it will reinforce the legitimacy of such Convention. From now on, for the States that consider this Convention an outrage to individual liberty and cultural exchanges, and have been fiercely opposed to it, the coast is clear”. In fact, political challenge nourished by U.S. opposition, concerning culture’s commercialization goes further than the concepts of “cultural exception” and "cultural diversity" that prevailed during the agreements of GATT and the UNESCO Convention. According to her, “these notions, kind of uncertain concerning the trade agreements, must be now materialized into real cultural policies. From now on, the United States (USA) will have the pleasure to use strategies aimed at discouraging the signatories of the Convention to continue. They have already convinced, using astute manoeuvres, some governments about the lack of relevance of this legal instrument. The slow ratification process leaves the U.S. diplomacy all the time to negotiate bilateral agreements whose goal is to weaken the Convention, demanding its partners to renounce to some rights that the Convention could provide them if they ratify it. Is one of the most convincing ways that Bush administration has implemented to slow the ratification process and reduce the scope of the Convention. Since not too many countries can neglect the USA as commercial partner, it is difficult to defy the conditions they impose within the framework of the trade agreements".
In the same order of ideas, she asserts that the increase of bilateral agreements concluded by the USA could devastate the multilateral system in favor of a practice that promotes only particular interests. For example, “negotiations between South Korea and the United States with a view to reach a free-trade agreement demonstrate very well the influence of U.S. diplomats and the dilemma that represents for a State to choose between its economic development and its cultural policies (Korean screen quota system)”. This illustrates the governments’ difficulty to keep their cultural policies in a world where trade becomes more important than culture. This is the reason why, considering the negotiations under the sponsorship of the WTO concerning services liberalization and the risk that the USA could obtain concessions on audiovisual services, many countries have decided not to make a liberalization engagement in these sectors (Québec, Canada, European Union, African Union).
In conclusion, the author affirms, “If it were possible to obtain, before the next UNESCO General Conference on October 2007, the ratification by a number of States higher than the minimum required and there could be a high level of representatives from signatory States, this will send a clear message: it will be then much more easier to declare that the cultural sector must be treated independently from the commercial area”.