Vol. 2, Nos. 7 and 8, November / December 2004

IN THIS ISSUE:

Canada ’s Position on UNESCO Convention: Focus Scope, Define Obligations, Address Articles 13, 19 and 24 Later

Canada has used its written comments—filed on November 19—in the UNESCO process for developing the proposed Convention on the protection of the diversity of cultural contents and artistic expressions to argue for keeping the focus on developing a convention that clearly affirms the right of countries to take cultural policies.

“ Canada would like to reiterate its strong support for a very focused convention,” Canada ’s submission states. “The scope of this Convention should remain on cultural contents and artistic expressions – one that recognizes the dual nature of cultural goods and services as having both an economic and social value, and which re-affirms the right of States to take measures in support of the diversity of cultural expressions.”

Canada is arguing that the core content of the convention—its objectives, principles, scope and rights and obligations—should be defined and agreed on before addressing such issues as the Convention’s relationship with other instruments (Articles 13 and 19) and the question of what type of dispute settlement mechanism will be appropriate (Article 24).

In preparing its comments, the federal government received submissions from seven provinces— Alberta , BC, Ontario , Saskatchewan , Quebec , Prince Edward Island , Newfoundland and Labrador —as well as from the Yukon . Quebec made its comments publicly available via the website of its cultural diversity branch.

In its presentation to the December 6 meeting of the Standing Committee on Canadian Heritage, the Coalition for Cultural Diversity supported Canada ’s emphasis on keeping the scope of the Convention tightly focused in line with the resolution adopted at UNESCO’s 32 nd General Conference in October 2003.

But the CCD expressed concern about the possible implications of Canada ’s decision to stay largely silent on the key issues raised by articles 13, 19 and 24.

“ Canada cannot maintain its wait-and-see position any longer,” CCD co-chair Pierre Curzi told the committee, noting that the second of three negotiations sessions was less than two months away. “It must now show its colours on the key questions of the legal status of the Convention and its relationship with international trade agreements.”

“The central objective of the Convention is to fill a void in the international legal system by creating a new legal instrument that will clearly affirm the sovereign right of countries to establish their own cultural policies in support of the diversity of cultural expressions,” Curzi said. “But the sole affirmation of this sovereign right risks having little practical benefit if we do not at the same time confer upon the UNESCO Convention a strong legal status within the framework of international law. The Convention must therefore include provisions that clearly establish its legal weight with respect to other international pertinent instruments.”

Canada ’s emphasis on sticking to a tight scope reflects concern arising from statements made by a number of countries during the first intergovernmental negotiations session this past September that sought to define the cultural diversity question in extremely broad terms, extending from culinary traditions to ways of life and rituals.

Such a broad definition is problematic on several levels, and would risk severely limiting both the effectiveness of the Convention, and the prospects of building broad support for the Convention. And any hope of having a strong Convention that could be adopted by 2005 would go out the window.

While addressing the Convention’s core content is obviously critical, there is a very real concern that Canada risks losing its leadership position on this file by electing not to put forth a comprehensive vision of what the Convention should be, and how it should work.

At heart, the UNESCO process is a negotiation, and typically parties begin negotiations by putting forward their strongest position with respect to the key elements being addressed in the negotiation. Inevitably, in the quest for consensus, compromises must be made, but the prospects of winding up with a useful result at the end are strengthened to the extent that a strong position is established at the start, and a rapport de force is developed around this position.

Highlights of the CCD’s presentation to the Standing Committee:

Human Rights Implications: The Coalition supports Canada ’s emphasis on the importance of ensuring that nothing within the Convention “be used to justify or contribute in any way to the derogation from existing international human rights obligations. This Convention should at no time be used to justify human rights abuses in the name of cultural diversity.”

Objectives: The Coalition supports Canada ’s assertion that the objectives of the Convention should reflect the following two concepts: “1) Recognition of the dual nature of cultural goods and services; and 2) Reaffirmation of the right of States to take measures in support of the diversity of cultural expressions. Though the first of these is currently reflected in the Preliminary Draft Convention, the second is not. If the Convention is to serve as an international point of reference, this second concept needs to be a central objective of the Convention.”

Rights of States Parties: The Coalition largely agrees with the proposed changes submitted by Canada with respect to Articles 5 and 6, notably removing language that would risk delimiting the right of countries to apply cultural policies only in situations where diversity of cultural contents and artistic expressions was ‘threatened or in a situation of vulnerability’, and the specific inclusion of rules on foreign ownership to the list of policy measures provided for under Article 6.2 At the same time, the CCD is disappointed by Canada’s silence with respect to the crucial question of the use of the trade-based principle of ‘proportionality’ in Article 2.8 as a criterion for assessing the admissibility of cultural policies. Principles are another area where Canada has contented itself with a general statement that these should be the subject of an overall discussion among UNESCO’s Member States.

Relationship to Other International Instruments and Follow-up Mechanisms: As noted above, Canada stated that this question should be addressed later in the process. However, it did make general comments: the Convention “should be mutually supportive and non-hierarchical with other international agreements. It can and must achieve its important objectives while being consistent with the rights and obligations of States under existing international agreements.” As for the follow-up bodies, these will need to be “effective and appropriate,” with “timely and accessible procedures to resolve relevant disputes between States Parties ”. However, “these should be elaborated once the scope, objectives and obligations have been clarified.”

In its presentation to the Standing Committee, the CCD focused its comments regarding the Convention’s relationship to other instruments and its follow-up mechanisms on three main articles: 19, 13 and 24, arguing that key principles were at stake in each of these articles:

Article 19: A Question of Equity . As is well-known, Article 19 was the only article for which two options were proposed. Option B states flatly that “ nothing in this Convention shall affect the rights and obligations of the States Parties under any other existing international instruments. ” In the Coalition ’s view, Option B is completely unacceptable. It would have disastrous consequences with respect to the principle of equity among countries, because it would effectively create a two-tier world in which one group of countries retained the right to have cultural policies and another group, notably including many developing nations, which would not have this right due to prior liberalization commitments on culture they have made in the context of trade negotiations. For these countries, the Convention’s affirmation of the sovereign right of countries to have cultural policies would count for nothing.

Instead, the Coalition proposes using Option A as a starting point for developing new wording that would afford countries some greater latitude to take measures favouring cultural diversity beyond situations where it faced “serious damage or threat.” In particular, the CCD proposes that the Member States could undertake to incorporate into the Convention provisions allowing signatory States recourse to a procedure for re-examining such previous obligations to enable them to reclaim some greater latitude for supporting their own culture.

Article 13: A Question of Coherence. The Coalition has proposed strengthening the language in this Article to ensure Signatory States clearly commit to refrain from making commitments contrary to the objectives of the Convention. In effect, to be coherent, a Signatory State cannot enshrine its sovereign right to establish cultural policies through the Convention and then, a few years later, renounce it’s ability to exercise this right in a trade agreement by making liberalization commitments that are contrary to the objectives of this Convention. Strengthened, Article 13 could play a key role in ensuring that the Convention becomes the authoritative instrument on questions of cultural policies, a reference that the Signatory Parties can cite to other Member States as their basis for refusing to make liberalization commitments on culture.

Article 24: A Question of Effectiveness. The Coalition argues that if the UNESCO Convention is to be truly equal in weight to international trade instruments, then its mechanism for dispute settlement should be equal in weight to those found in trade agreements. Specifically, it should be a mechanism that can be triggered unilaterally by one Signatory Party. Moreover, the two parties in a dispute must be bound by the decision rendered. Without such a binding mechanism, it will be almost impossible to make of the Convention the definitive reference for resolving disputes relating to cultural policies. Instead, it will remain highly likely that countries continue to resort to mechanisms provided for in WTO and other trade agreements.

The Coalition proposes two further provisions: 1) that Signatory Parties commit to use the mechanisms within the Convention to resolve disputes arising from cultural policies; and 2) in situations where a country that is not signatory to the convention brings a complaint against a Signatory Party’s cultural policy in another forum, such as the WTO, it is essential that the State whose policy is attacked have the prerogative of simultaneously activating the dispute settlement mechanisms of the UNESCO Convention, in order to obtain an opinion via this channel that would then enter the public record.

The Coalition delegation appearing at the Standing Committee on Canadian Heritage included : Pierre Curzi, CCD Co-Chair and Chair of Union des Artistes, Maureen Parker, CCD Vice-President and Executive Director of the Writers Guild of Canada, Robert Pilon CCD Executive Vice-president.

What Happens Next :

Some 62submissions were received by UNESCO, including a joint submission on behalf of the 25 countries of the European Union. These comments were compiled by UNESCO’s Secretariat for the first meeting of the Drafting Committee for the Preliminary Draft Convention scheduled for December 14-17. Twenty-four member states, drawn from UNESCO’s six regions, were chosen in September to participate in this Drafting Committee. The Drafting Committee will generate a revised draft text, incorporating the various proposals from member states. This will be available prior to the second intergovernmental negotiations session, which will run January 31 to February 12.

Canada is not a member of the drafting committee but will be represented during the meeting by Artur Wilczynski, Director, International Relations and Outreach, Canadian Heritage, who was elected rapporteur for the intergovernmental negotiations sessions.

TOP

PM Martin , Brazil ’s Lula Reaffirm Support
for UNESCO Convention

Prime Paul Martin and Brazilian President Lula da Silva used a declaration issued at the conclusion of their November 22-23 meetings in Brasilia to reiterate their support for the process underway at UNESCO to secure an international convention on the protection of the diversity of cultural contents and artistic expressions.

In the declaration , Martin and Lula “highlighted the plurality of cultures that characterize their countries and committed to working together to secure an effective UNESCO Convention on Cultural Diversity.”

Cultural diversity was just one of a number of issues the two leaders discussed during their meetings. Lula’s Global Initiative Against Hunger and Poverty was discussed, as were development issues, and trade issues.

Martin, Charest Stress Support for UNESCO
Convention at Francophonie Summit

Prime Minister Paul Martin and Quebec Premier Jean Charest both used speeches and interventions in the course of the Tenth Francophonie Summit of Heads of State and Government held November 26-27 in Ouagadougou, Burkina Faso, to urge their colleagues to intensify their work in support of a Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions at UNESCO.

In his speech, Martin recalled the role Francophonie member countries had played in championing the campaign to have UNESCO take on the development of the Convention—notably through a very strong statement to this effect in the Beirut Declaration issued at the conclusion of the 2002 Summit . “We in La Francophonie should congratulate ourselves for our unified and outstanding efforts on this project of fundamental importance,” he said, while also urging his colleagues to ensure their countries filed comments on the Convention with UNESCO if they had not done so already.

Charest called on the Francophonie Heads of State and Government to ensure their countries remained actively engaged in support of a strong convention that could be adopted by 2005. “It is important that we all engage in order to ensure that we do not miss this key deadline,” he stressed.

Immediately prior to the Summit, delegates of cultural organizations from some 18 Francophonie countries came together for a three-day meeting in Burkina Faso organized by the Canadian and French Coalition s in their capacity as Co-Secretariat of the International Liaison Committee of Coalition s for Cultural Diversity in conjunction with the host coalition from Burkina Faso. The meeting focused on the culture and trade debate, notably the state of play for the UNESCO process to develop the Convention, and the specific pressures trade negotiations are bringing to bear on Francophonie-member countries to make liberalization commitments on culture.

A four-person delegation from this meeting—including Rasmane Ouadraego of the host Burkina Faso Coalition, Robert Pilon of the Canadian Coalition , Michel Gautherin of the French Coalition and Ghassan Koteit of Lebanon—appeared before a meeting of ministers responsible for Francophonie issues held immediately prior to the Summit. As Christian Rioux noted his report on the Summit in Le Devoir , Quebec ’s Deputy Premier and Minister of International Relations, Monique Gagnon-Tremblay, was instrumental in securing access to the ministers for this exchange.

Sustainable development was the central theme of the Xth Francophonie Summit, but the Heads of State and Government used their final declaration as an opportunity to clearly reaffirm their support for a strong Convention at UNESCO. The January issue of Coalition Currents will include a more detailed report on the Summit .

Coalition Reps Present to Fed-Prov
Culture Ministers Meeting

Coalition Co-Chair Scott McIntyre and CCD Vice-President Pamela Brand were in Halifax to give a presentation during the October 28-29 meeting of federal and provincial ministers responsible for culture.

Appearing on October 29, McIntyre and Brand updated the ministers on the work the Coalition has been doing over the past five years to build support domestically and internationally for the proposed international convention on cultural diversity. They appealed to the provincial ministers to lend their support to this campaign,

In the exchange that followed, a number of ministers took the opportunity to salute the CCD for the work it has done to date, and to express their strong support for the process now underway at UNESCO—notably, Madeleine Meilleur of Ontario and Joan Beatty of Saskatchewan. Line Beauchamp of Quebec reiterated her government’s continuing support for this campaign and urged her counterparts to join in with their political support.

The ministers continued their discussion regarding the state of the campaign for the convention, culminating in their adopting unanimously a resolution expressing their support for Canada ’s efforts to secure an effective convention through the UNESCO process.

Seven provincial ministers and their counterparts from two territories were present for the meeting, which was co-chaired by Minister of Canadian Heritage Liza Frulla and Nova Scotia ’s Minister of Tourism, Culture, and Heritage, Rodney MacDonald.

TOP

• Canada ’s Position on UNESCO Convention: Focus Scope, Define Obligations, Address Articles 13, 19 and 24 Later

• PM Martin , Brazil ’s Lula Reaffirm Support for UNESCO Convention

• Martin, Charest Stress Support for UNESCO Convention at Francophonie Summit

• Coalition Reps Present to Fed-Prov Culture Ministers Meeting

• CCD Meets with Ontario Culture Minister Meilleur

• Coalition Reps Continue Domestic, International Mobilization Efforts

  
  
  

  
  

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