Professor emeritus, Faculty of Law, Université Laval, Québec City, Canada
Ivan Bernier, affectionately nicknamed the “father of the Convention", has enjoyed a remarkable and inspiring career. Not only is he noted for his work as a researcher, teacher, and author—with several books and over 50 publications to his credit—but also for the many other roles he has played over the years.
Always a trailblazer, Mr. Bernier was the first person to teach a course on the World Trade Organization’s General Agreement on Tariffs and Trade in a Canadian university. Throughout his career, he has been a staunch defender of Québec culture at both the national and international level—and this long before cultural diversity became a hot topic.
Mr. Bernier, who holds a PhD in law with a specialization in international economic law from the London School of Economics (1969), has held a number of positions in the course of his fruitful career:
Mr. Bernier has remained very active in recent years, penning numerous academic texts1, and working as a consultant. He is still active as one of the leading members of the International Network of Lawyers for the Diversity of Cultural Expressions (RIJDEC)2.
Québec's Secrétariat à la diversité culturelle team had the good fortune to speak with this inspiring figure.
Answer: There had to be a clearly identified need for an international instrument on cultural diversity for large numbers of national governments to sit down and negotiate one. Globalization was what sparked that need. What we have to understand is that although globalization is first and foremost an economic phenomenon, it also has a cultural impact. Ever since the First World War, the signs of tension between these two realities have been growing and telling us that globalization may happen to the detriment of cultural diversity.
The political debate over the interface between trade and culture took root in the 1920s when several European nations decided to impose screen quotas to protect their domestic movie industries from the onslaught of American films, which they viewed as a threat to their culture. It resurfaced after the Second World War in the GATT negotiations (General Agreement on Tariffs and Trade) when the question was deemed of sufficient import to justify a provision recognizing the cultural significance of cinematographic films. It continued to grow in importance over time as trade conflicts over cultural goods and services proliferated and the relationship between trade and culture was debated in numerous articles and at numerous conferences.
A new stage was reached in the mid-1980s when Canada secured a cultural exemption clause in its free trade negotiations with the United States. An identical clause was later inserted in the North American Free Trade Agreement (NAFTA), which included Mexico in addition to Canada and the U.S. Another cultural exemption request was made in the final phase of the GATT Uruguay round in 1993, but was dropped altogether in the final days of the negotiations. In 1998 at the time the multilateral agreement on investment (MAI) was being negotiated, France asked for a cultural exemption clause to be included, but the request was once again turned down.
Another important milestone came in 1997 in a dispute over magazines3, when Canada was told by the WTO Dispute Settlement Body that cultural considerations could not override WTO trade obligations. The ruling marked a turning point for Canada. The decision, combined with the troubled trade negotiations in Seattle in 1999, where many countries—including developing countries—and NGOs spoke up to say they were tired of all the backroom dealmaking, caused many to seriously question globalization’s impact. Civil society clearly showed that it did not agree and that it was capable of blocking negotiations.
Then came the 2000s and the realization that it was impossible to secure a cultural exemption clause in multilateral trade negotiations and that negotiations on a new international legal instrument governing cultural diversity had to be launched. Certain countries and governments, in particular France, Canada, and Québec, were very clear on the matter. Simultaneously, international organizations like the Council of Europe in December 2000, La Francophonie in June 2001, and UNESCO in November 2001 adopted declarations on cultural diversity. Then in 2002 the International Network on Cultural Policy (INCP) put forward a first draft of a convention on the diversity of cultural expressions. And in 2003, a formal request to inscribe the matter on the agenda of the UNESCO General Conference was transmitted to that organization’s Executive Board.
I was in Paris when the UNESCO Executive Board met and held its decisive vote to add a point to the General Conference agenda on the advisability of developing an international normative instrument on cultural diversity. It was a gripping moment. A majority of countries voted in favour, despite opposition by the United States and a handful of other nations. In October 2003, the question was thus put to the UNESCO General Conference, which mandated its executive director to submit a preliminary report at the next session (October 2005) together with a draft convention on the diversity of cultural expressions. That was when the actual negotiations got underway. The executive director started by setting up a committee of independent experts, including myself, to draw up the draft convention, which was the first step in a process that would later lead to negotiations among UNESCO Member States.
This all led to an intense period of talks between government representatives at three work sessions in Paris. To get things rolling, countries were invited to convey what type of convention they felt should be created. This resulted in a flood of comments and concerns. To move things along, it was agreed to use the draft by the independent experts as a starting point for negotiations. The negotiators went over the provisions of the text article by article, rewriting as necessary as they went. It was trench warfare! Some of the sticking points included the purpose of the Convention, the Convention’s relationship to other international agreements, and how binding the Convention should be. One of the important figures who helped advance debate was professor Kader Asmal, the chair of the intergovernmental negotiating sessions. His pragmatism and keen attention during debate went a long way to clearing up stubborn misunderstandings. He was instrumental in bringing the number of bracketed sentences under control. We finally arrived at the Convention text as adopted by the UNESCO General Conference in October 2005. This signalled the start of the ratification campaign. On March 30, 2007, the threshold of 30 signatures required for the Convention to come into effect was reached—in record time!
Answer: Convention implementation is ultimately an individual state responsibility, although there are Convention bodies with a role to play. States can invoke the Convention to assert their right to maintain, adopt, and implement policies and measures they deem appropriate for the protection and promotion of the diversity of cultural expressions within their national borders. They are free to act as they wish. However, we should reasonably expect countries to protect existing cultural measures and not negotiate away their right to adopt others in new bilateral and regional trade agreements. But are they really doing this?
I believe that the Convention has had a real impact on how states negotiate new trade agreements, but still not a decisive one. The State Parties still interpret the Convention in too many different ways. A recent study on how the Convention is reflected in bilateral and regional trade agreements that have come into effect since the Convention was adopted found explicit references to the Convention as well as cultural exemption clauses and clauses allowing the Parties not to make any commitments with regard to cultural services4. But the protection provided for in a good number of the agreements is far from watertight, and many accord no particular status to cultural goods and services.
But I think that the real looming challenge is how cultural products are treated in the e commerce provisions making their way into more and more bilateral and regional trade agreements. Some of these agreements already have provisions for national treatment or most favoured nation treatment for products delivered electronically. The obvious danger is that since most cultural goods and services can be converted to electronic format, they can in fact be traded electronically and find themselves subject to such requirements. The State Parties to the Convention will therefore have to be particularly on their guard if they wish to continue to protect their ability to adopt measures favourable to their own cultural industries.
Answer: There are several aspects to the Convention that merit attention. First, regarding the interface between trade and culture, progress has definitely been made, but there is still much to do in other international forums to educate people about the Convention's objectives. When people talk about trade versus culture, unfortunately trade still tends to have the upper hand.
Another important question is that of assistance to developing countries. The question takes on different shapes depending on which Convention provisions we're talking about. With regard to preferential measures in Article 16, there is still a long way to go. There have been some great debates on the subject within Convention bodies, and certain bilateral and regional agreements call for the Parties to provide each other with preferential treatment. But that's still a far cry from what developing countries expect in terms of preferential treatment.
Another provision of abiding interest to developing countries is the one that created the International Fund for Cultural Diversity (IFCD). There have been five calls for projects to date, and numerous projects have been funded. It's easy to get an idea of the types of projects by visiting the Convention site. In this regard we can talk about a success. But the big problem is still underfunding. The Fund will find it hard to carry on in future unless it identifies efficient and recurrent sources of funding. Implementation of this provision should therefore be a priority. Up to now most of the funding has been raised by going hat in hand to State Parties. Now it's time to call more on individuals and businesses active in the cultural arena. We also need to identify individuals who can serve as Fund ambassadors and run annual fundraising campaigns in their home countries. But it all ties back to the Convention's visibility. Unfortunately, it is still too little known among the general population and, curiously enough, in cultural and arts circles, too!
Another subject that could grow more salient in future is the status of artists. It’s a question that opens a window of opportunity for working with the other Parties to the Convention. Québec could highlight its own experience in the field because it has two interesting pieces of legislation, the Act respecting the professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters and the Act respecting the professional status and conditions of engagement of performing, recording and film artists.
Another area I would really like to see us explore is what to do about situations where cultural expressions are at risk of being wiped out, are facing a grave threat, or need urgent protective measures. Article 8 of the Convention has never been used, and I fear that will continue to be the case. We need to do some serious thinking on the matter, because I'm convinced that even as we speak, a great number of cultural expressions are in jeopardy. Why does this never get talked about?
It is difficult to imagine where the Convention will be in ten years. I have no doubt that the needs that spurred its adoption will still be here. But I remain optimistic, because I believe there will always be people who are concerned about the problems the Convention addresses, people who will want to make a difference and who will find a way to give the Convention full effect. People like that are already at work in many areas. At UNESCO itself, I'm thinking of the likes of Danielle Cliche and Laurence Mayer, who are doing remarkable work at UNESCO's Diversity of Cultural Expressions Section. In academia, there are people of the highest calibre who continue to fan the Convention flame by teaching it to their students, training tomorrow's leaders, and promoting it through their writings. I would be remiss not to mention Professor Véronique Guèvremont at Université Laval's Faculty of Law as an example. And there are many more like her in government circles and civil society. Knowing this gives me confidence in the future! If we have been able to get where we are today, we should be able to ensure that the Convention survives and develops as it should!
2 RIJDEC was founded in October 2008 by Ivan Bernier and Véronique Guèvremont, a fellow professor at the Université Laval Faculty of Law. With approximately 50 members in 21 states, it is made up of lawyers, practitioners, and academics who are either involved or interested in the implementation of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.
3 The magazine dispute was a case heard by the appeal body of the World Trade Organization entitled “Canada – Certain measures concerning periodicals,” WT/DS31/AB/R.
4 In this regard, see working document CE/14/8.IGC/11, 8th ordinary session of the Intergovernmental Committee in December 2014, pp.22–25,