Highlights:

Vol. 2, No. 6, October 2004

The UNESCO Convention Process:
First Negotiations Meeting Wraps, Nov. 15 Deadline
for Member State Comments Looms

UNESCO’s first meeting of intergovernmental experts held September 20-24 in Paris was a watershed moment in the campaign to secure an international convention to protect the diversity of cultural contents and artistic expressions. And the participation of more than 550 delegates from 132 of UNESCO’s 191 Member States was clear testimony to the intense interest the convention process has attracted from all parts of the world.

“We have heard numerous interventions from Member States from all over the world as well as from NGOs and IGOs,” observed the meeting’s chair, the former South African Minister of Education Kader Asmal. “The sheer number as well as the quality of these interventions bear witness to the relevance and importance of the subject at hand.”

At the same time, the wide-ranging nature of the comments made regarding the text itself points to the challenge of developing broad support for a strong convention in time for it to be adopted at UNESCO’s 2005 General Conference.

During the discussions, many states emphasized the importance of tightening up wording with respect to the convention’s preamble, scope, objectives and principles in order to keep the convention focused on the specific mandate given it by the 2003 General Conference: to prepare a draft convention that would protect the diversity of cultural contents and artistic expressions.

In their opening statements during the first two days of the meeting, a large number of states reinforced this message by emphasizing the fundamental importance of securing a convention through this process that would affirm the sovereign right of all states to have cultural policies designed to ensure a space for domestic cultural creation and to promote a more balanced exchange of cultural contents and artistic expressions among states at the international level.

Several states also urged that the convention affirm the positive dimension of cultural diversity by changing the title to reference both the “promotion” as well as the “protection” of diversity of cultural contents and artistic expressions.

Meanwhile, other states made interventions proposing a wider scope for the convention, suggesting that it be broadened to address issues of societal values, social cohesion, education, religion, and the protection of linguistic diversity.

The range of opinion with respect to rights and obligations was similarly wide-ranging, as was the discussion regarding the relationship of this convention to other international instruments.

In this regard, it is worth noting that the article addressing the convention’s relationship with other international agreements is the only instance where the experts group charged with drafting the text proposed two approaches: Option A and B.

Option B states flatly that the UNESCO convention would in no way alter obligations assumed by states through other international instruments. Option A provides some very limited latitude for countries to depart from prior commitments in cases where cultural diversity would face “serious damage or threat”.

The outcome of this debate will be of enormous importance to cultural organizations from all countries, but particularly to those whose governments have previously made liberalization commitments affecting culture in trade agreements.

While some states elected for one or the other option—including a significant number who expressed support for Option A—several states expressed a preference for developing a ‘third way’ of articulating the relationship of the convention to other international agreements. A legal advisor appointed by UNESCO is currently working on a written presentation setting out various options for addressing this question. This document will be available prior to mid-November. The nature of the debate on this issue makes it likely that this question will be among the last to be resolved by the member states during the negotiation process.

Many member states emphasized the preliminary nature of their comments at this first meeting, stating that they would express their formal position in writing by the November 15 deadline set by UNESCO.

With respect to this process, the chair of the meeting, Kader Asmal, the former Education Minister of South Africa , stressed the importance of Member States building ‘unified positions at the national level’.

“National consultations enable countries to develop integrated and coherent positions and approaches that take into account their national developmental policy objectives,” he said.

The November 15 deadline for UNESCO member states to file their written comments points to the importance of cultural organizations engaging in discussions with their national governments now to ensure they express support for the key elements of a strong convention. And in this regard, Asmal’s remarks underscored the importance of initiating discussions with their government through several channels—not only through with their minister of culture, but also their minister of foreign affairs and the minister responsible for international trade—and ideally, at the head of government or head of state level as well.

Such a multi-pronged approach is all the more important given that the UNESCO process for developing the convention specifically provides for the World Trade Organization to give feedback on the draft convention. UNESCO Director General Koїchiro Matsuura has asked the WTO to provide its response by December. This means that national governments will also be asked to express their views regarding the convention via their ambassadors at the WTO.

For cultural organizations seeking a strong convention—a convention that clearly affirms the sovereign right of states to have cultural policies, and a convention that is equal in status and not subordinated to WTO and other trade agreements—the importance of ensuring their countries deliver a consistent message on this question both through the WTO and UNESCO cannot be overstated.

Although the discussion was broad, the September 20-24 meeting set the stage for a much more concentrated discussion at the end of January when the member states will meet for the second time, from January 31 to February 12. At this meeting, they are expected to embark on a clause-by-clause negotiation based on a new draft text that will have been prepared in the interim—a text that is expected to include extensive brackets setting out alternate wording throughout all sections of the convention.

The new text will be pulled together by a 24-person drafting committee, drawn equally from all six of UNESCO’s regions, that will meet between December 13 and 18. This new draft will build on the preliminary text by incorporating formal written comments filed by member states by UNESCO’s November 15 deadline as well as interventions made during the September 20-24 session along with. The new text is to be released in early January.

The members of the drafting committee are: Algeria , Armenia , Barbados , Benin , Brazil , China , Costa Rica , Croatia , Ecuador , Finland , France , Hungary , India , Japan , Korea , Lebanon , Madagascar , Nigeria , Russia , Saudi Arabia , Senegal , Switzerland , United Arab Emirate and the United States of America . Meeting Chair Kader Asmal and Rapporteur Artur Wilczynski will also take part in the December 13-18 meeting.

Although Member States will gather for at least one more intergovernmental experts session in May-June of next year, the outcome of the second meeting in January-February should provide a better indication of where the UNESCO process is headed—both on the question of how strong the resulting convention stands to be, and whether support is coalescing rapidly enough for the convention to be adopted at the 2005 General Conference in October.

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Develop a strong convention that clearly affirms the sovereign right of countries to develop and maintain cultural policies. Take care not to constrain the exercise of this right solely to situations of vulnerability or crisis. And adopt a convention that is equal in weight to other international instruments, and clearly not subordinate to international trade agreements.

These were among the principal messages delivered to UNESCO member states by representatives of the International Liaison Committee of Coalition s for Cultural Diversity (ILC-CCD) during the September 20-24 intergovernmental negotiations session.

The ILC was formally accorded observer status by UNESCO at last spring’s Executive Board meeting, and in this role was given the opportunity to make statements during the course of the five-day intergovernmental negotiations session.

The ILC’s opening statement was delivered on September 21 by Nemesio Juarez of the Argentinian coalition. A supplementary intervention was made by the ILC on September 22 by Robert Pilon of the Canadian Coalition for Cultural Diversity.

In addition to Juarez and Pilon, the ILC delegation included Debora Abramowicz of the French Coalition and Jim McKee of the Canadian Coalition . The delegation also benefited throughout the week from the presence of Anna Danieli of Uruguay ’s coalition, who was formally a member of her country’s UNESCO delegation.

Highlights of the ILC position, developed at a September 13 meeting that brought together 15 of the now 19 coalitions for cultural diversity (see next article), are as follows.

• The ILC applauded UNESCO for the work done to date in developing a preliminary draft text of the proposed convention for the protection of the diversity of cultural contents and artistic expressions. While emphasizing that some sections of the convention should be strengthened and certain sections clarified, the ILC said that it considers this draft to be an excellent starting point for the intergovernmental negotiations—and that working from it offers the best prospect of meeting the objective of having an effective convention ready for adoption at UNESCO’s 33 rd General Conference in September 2005. Given the growing pressure on culture from trade negotiations, it remains of great importance that this deadline be met.

For the convention to be truly effective, the coalitions emphasized that the final version of the text that is ultimately adopted must:

• Contain an unequivocal affirmation of the sovereign right of states to develop, implement and maintain cultural policies designed to ensure a space for domestic cultural production and access to a genuine diversity of culture from a wide variety of states at both the national and international level. This right should be clearly affirmed in the convention’s objectives, and in Chapter III, which deals with States rights and obligations. Minor edits to Article 6 of the preliminary draft could easily achieve this by eliminating language that risks delimiting the right of States to implement cultural policies to situations where cultural diversity is ‘threatened or in a situation of vulnerability’.

• Include a clear commitment by States to uphold the objectives of this convention in other international fora—notably by refraining from any liberalization commitments affecting culture in the context of international trade agreements. To this end, the Coalition s proposed that Article 13 incorporate language categorically committing States to refrain from making commitments in other fora that run contrary to the objectives of the convention.

• Avoid language that would risk subverting the fundamental objective of the convention by unduly constraining the right of countries to have cultural policies rather than unambiguously affirming this right. In this regard, the specific concern arises from the use of the term ‘proportionality’ used in Principle 8, which in its application might result in acceptable cultural policies being strictly limited to minimal measures designed to redress a crisis situation.

• Not be subordinated to other international instruments. The Convention must be equal in weight to other agreements, including trade agreements, and must serve as the definitive authority with respect to the measures states may take to ensure a genuine diversity of cultural contents and artistic expressions. This issue is addressed in Article 19 of the draft text, in which two possible options are presented for delineating the relationship between this convention and other international instruments. Of the two choices presented, the coalitions urged UNESCO’s Member States to use Option A as a starting point, but recommended that the current wording be amended to afford States greater latitude to take measures to pursue cultural policies in favour of cultural diversity in situations where countries have previously taken liberalization commitments on culture in other international instruments.

• Contain a clear commitment by developed countries to support the growth of true cultural industries within developing nations, notably through cooperation initiatives for development as detailed in Article 16 of the present draft.

Finally , the coalitions recommended that the convention be renamed ‘The Convention on the Protection, Promotion and Development of the Diversity of Cultural Contents and Artistic Expressions’.

Coalition's Meeting in Paris Largest Yet

Representatives of 15 national coalitions for cultural diversity gathered in Paris on September 13 and 14 to develop a consensus position on the UNESCO draft text and to communicate this position to national delegations to UNESCO at a special seminar held within the agency’s headquarters.

Delegates participating in the meeting, which was hosted by the French Coalition , represented coalitions from Argentina , Australia , Belgium , Burkina Faso , Canada , Chile , Colombia , Germany , Korea , Mexico , Morocco , Peru and Uruguay . They were joined by delegates representing emerging coalitions from Spain and Ireland ( by the end of the week a nucleus of cultural professional organizations came together on September 17 in Dublin to formally establish the Irish Coalition for Cultural Diversity). Coalition s from Benin , New Zealand , Senegal and Togo were unable to send representatives to the meeting.

The main focus of the September ILC meeting was to develop a consensus response to UNESCO’s preliminary draft text of the convention—a response which was made public the following day at a special seminar on the convention organized by the ILC for UNESCO ambassadors and delegation representatives. While in Paris , the vast majority of coalitions also arranged private meetings with their country’s ambassadors to UNESCO to urge them to support the campaign to secure a strong convention through this process.

The September 14 seminar was attended by a full house of more than 200 people, including representatives of more than 60 permanent national delegations at UNESCO, and attracted media coverage in major daily newspapers in both France and Canada .

Representatives of five coalitions spoke at the seminar: filmmaker Nabil Ayouch ofMorocco , screenwriter Jean-Claude Carriere of France, actor Pierre Curzi of Canada , publisher Anna Danieli of Uruguay , and actor Rasmane Ouedraogo of Burkina Faso .

Their statements were preceded by speeches from three experts who had been part of the multi-disciplinary team that prepared the UNESCO draft text at the appointment of Director General Ko ї chiro Matsuura— Ivan Bernier of Canada, Jean Musitelli of France, and David Throsby of Australia.

The seminar was moderated by Pascal Rogard, the Chair of the French Coalition.

 

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US-SACU FTA Talks Stall;
US to Fragment Talks with Andean Pact?

A September 22 announcement that talks for a Free Trade Agreement between the United States and the five member states of the Southern African Customs Union (South Africa, Lesotho, Swaziland, Botswana and Namibia) have been suspended and will not resume until next year provides some slight relief from the pressure on culture coming from trade negotiations.

Bilateral negotiations have been a key vehicle through which the United States has been able to push for, and in many cases secure, significant liberalization commitments from other countries with respect to the cultural sector in general and the audiovisual sector in particular. Over the past two years, Australia , Chile , the five countries of Central American , Morocco and Singapore have all accepted to varying levels of liberalization affecting culture—ranging from sweeping liberalization commitments to essentially accepting ‘standstill’ requirements which freeze in place existing cultural policies as the maximum permitted for that country.

In the case of the SACU, news reports indicate that the talks have broken down over intellectual property and investment rules, with US demands at particular odds with South Africa ’s development objectives, including the provision of health services and the development of the country’s own business sector.

Access of US firms to bid on South African government procurement contracts is believed to have been another source of disagreement.

The talks were originally targeted to conclude before the end of this year. No new deadline has been set.

Meanwhile, US plans to secure another bilateral FTA in Latin America—this time, with three member countries of the Andean Pact—also appear to have hit roadblocks, prompting US trade officials to muse aloud that they may abandon talks with Ecuador and Peru in order to move ahead quickly to reach a deal with Colombia on its own. Rules governing investment and government procurement are also reported to be the source of fundamental disagreement in these negotiations as well. December 2004 had also been set as the original target for concluding these talks.

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Actors' International Backs Campaign
for UNESCO Convention

At their 18 th Congress, held September 21-24 in Budapest, Hungary, organizations representing actors from more than 50 countries accorded strong support to the process now underway to secure an international convention for the protection of the diversity of cultural contents and artistic expressions through the process now underway at UNESCO. They also put their support behind the process of mobilizing organizations representing artists and other cultural professionals in countries around the world through the creation of national coalitions dedicated to advancing this campaign.

Highlights of the resolution, which was proposed by actors' organizations from Canada (CAEA, UDA, ACTRA), France (SFA), Hungary (SDS) and Peru (SAIP), and which was adopted unanimously by all the FIA members present, including the Screen Actors Guild of America (SAG), are as follows:

“Strongly supports the process, initiated by the Member States of UNESCO at the 32 nd Session of its General Conference, to develop an enforceable Convention on the protection of the diversity of cultural contents and artistic expressions that would be an international standard-setting instrument reaffirming the sovereign right of each country to develop, implement and maintain cultural policies designed to ensure diversified cultural expression in its territory.”

“Calls on the Federation and its members to encourage the creation of coalitions - wherever they do not yet exist – of organisations concerned by cultural diversity, in order to strengthen the work undertaken by UNESCO on this matter.”

In a separate resolution, proposed by the South African actors union PAWE, FIA members also emphatically supported the principle that cultural goods and services should be kept out of international trade agreements. This resolution states:

“This 18th FIA Congress calls on all countries and governments to oppose the inclusion of culture in any and all free trade agreements, including those negotiated bilaterally or at the WTO.”

FIA Congresses are held every four years.

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