Highlights:

Vol. 3, No. 2, February 2005

Round II of UNESCO Talks: Clearer Focus, Stage Set for Critical Calls re Convention Content

At their second intergovernmental negotiations session held in Paris January 31 to February 11, UNESCO Member States took major steps towards having a draft convention on the protection of the diversity of cultural contents and artistic expressions ready for adoption at the October 2005 General Conference.

The fundamental question still to be answered is how strong the convention will ultimately turn out to be. But the issues at the heart of the negotiations have been greatly clarified, and the stage has been set for a critical third and final negotiations session now planned for May 23 to June 4.

Other highlights coming out of the February negotiations:

• By contrast with the often sprawling discussions regarding cultural diversity that characterized the first negotiations session last September, the February negotiations saw Member States move rapidly to a consensus that the convention’s scope should clearly be on the protection and promotion of the diversity of cultural contents and artistic expressions. That is, a convention that ensures states retain the right to take measures at the national level to ensure the diversity of cultural contents and artistic expressions both domestically and internationally.

• The February negotiations also stuck much more closely to the draft text than was the case last September. Member States managed to discuss 29 of the 30 articles in the draft convention in plenary—only Article 24, concerning dispute settlement mechanisms, was left for the end of the process. Discussion of the preamble was also left for the end.

• However, progress by the 24-country drafting committee charged with revamping the convention text to reflect the consensus emerging from the daily plenary discussions was slow—thanks largely to systematic obstructionism by the United States delegation. Nonetheless, the drafters managed to rework articles 1 through 11.

• While a clear majority agreement could be seen to emerge rapidly with respect to the convention’s scope, objectives, principles and rights and obligations, no such consensus has yet developed on at least three key issues: 1) what commitment states will make to uphold the principles and objectives of the convention in other international agreements (although a marked trend to weaken the provisions of Article 13 could be observed during the February debates); the convention’s relationship to other international instruments (Article 19); and dispute settlement mechanism to be used under the convention (Article 24).

• The drafting committee’s work was supplemented by the work of a number of ad hoc working groups charged with tackling specific aspects of the convention. The most successful of these was the group focused on international cooperation, whose overhaul of articles 12 through 18 (Article 13 excluded) met with broad support when presented in plenary.

• A new draft text, incorporating the work of the drafting committee, the working groups and also reflecting the consensus that emerged from plenary discussions of other sections of the convention (notably Articles 20 through 23), is now being prepared and will be circulated to Member States by UNESCO’s Director General Koïchiro Matsuura by March 3—seven months ahead of its proposed adoption at the October General Conference, as required by the agency’s regulations.

• Emerging consensus does not mean unanimity. Entrenched opposition to a truly effective convention remains—notably from the United States , Australia , and to a lesser extent from such countries as Japan and Mexico . The still unresolved debates will be clear in the extensive bracketing and footnoting that can be expected to appear throughout the March 3 draft (see below).

• A clear alliance have emerged to move the convention project forward, notably led by the European Union, Canada, China, Brazil, South Africa and—to some degree—India. The vast majority of African, Caribbean and Latin American states are also part of this alliance.

• The United States continues to attempt to delay and dilute the convention project. But for the moment they remain relatively isolated, only Australia in complete lock-step with them. Other countries such as Japan , Thailand , Indonesia , the Philippines , Ecuador , Mexico and New Zealand have also made proposals that would weaken the convention, but their reservations appear neither as entrenched nor as consistent as those of the U.S. and Australia . Overall, the number of countries favoring a true convention far outnumbers those opposed.

• Interest in the proposed convention remains high. The February negotiations were attended by more than 550 participants from 134 Member States , 9 intergovernmental organizations, and 23 NGOs.

The March 3 Draft: What to Look For

If UNESCO’s Member States managed to discuss 29 of the Convention’s 30 articles in the course of the February negotiations, this in no way means that the wording of these articles has been locked in place. Major negotiations remain. This is made very clear in the reworked wording of articles 1 through 11 prepared by the drafting committee. The new articles are extensively bracketed and footnoted, signalling concepts central to the convention that remain the focus of intense debate among member states. These will be reflected in the March 3 draft.

The repeated bracketing of the words “protect”, “protection”, “cultural goods and services”, and “cultural contents and expressions” will clearly highlight the continuing opposition from a limited number of Member States to a convention that would clearly affirm the sovereign right of countries to pursue policies designed to support healthy levels of domestic cultural creation and production.

The outcome of the negotiations concerning these terms will in large part determine whether the convention that results is a truly effective international treaty with genuine legal weight, or is simply a declaratory text of largely symbolic value.

In his concluding report on the second negotiations session, rapporteur Artur Wilczynski acknowledged the gulf that remains to be bridged: “We must be realistic that there is a fundamental challenge before us. There are clear differences that remain that must be bridged. These differences are illustrated by the number of square brackets and footnotes that exist in the draft prepared by the Drafting Committee.”

The extensive brackets might prompt a conclusion that Member States are evenly split on these questions. This is in no way the case. The reality is that only a small number of countries remain opposed to these terms—the United States chief among them. Their incorporation into the text is supported by a much larger group of countries.

Relationship to Other Instruments: An Interesting Proposal from the EU

Several key issues will remain to be resolved at the final meeting in May—and in reality, it is entirely possible that informal negotiations will continue right up until the October General Conference concerning critical adjustments in wording to the draft text focused on a limited number of key terms.

One major debate still to come concerns Article 19, the only article for which two options were originally proposed in the preliminary draft text. A majority of the Member States taking a position on this article in their written comments last November supported Option A, which would provide some limited potential for countries to derogate from prior international agreements in order to take action to address situations where cultural diversity was vulnerable or at risk. But a significant number of other countries support B, which states flatly that there can be no derogation.

Throughout the February negotiations, there was much discussion of a possible “third way” for dealing with the question of the convention’s relationship to other instruments. At meeting’s end, the EU circulated such a proposal informally, but discussion on the proposal will have to wait until the May meeting.

The EU proposal will have to be reviewed carefully, but at first glance it looks promising. It is not so much a compromise between the two existing options as a different approach:

• “Contracting Parties shall protect and promote appropriately diversity of cultural expressions in international instruments that could affect cultural diversity.

• Bearing in mind the specificity of cultural goods and services, Contracting Parties shall respect, in interpreting and applying international instruments, the provisions of this Convention.

• Contracting Parties shall foster mutual supportiveness between this Convention and other international instruments.

• This Convention shall not be subordinated to other international agreements. Neither shall other international agreements be subordinated to this Convention.”

A related question, also unresolved, is whether this new 19 is intended to incorporate the obligations currently addressed in Article 13, undertaking States Parties to uphold the objectives of the convention in other international agreements.

Towards Consensus, or Towards a Vote?

At the January 31 opening of the second intergovernmental negotiations session, Chairman Kader Asmal was careful to emphasize that while UNESCO has traditionally proceeded by consensus, this did not translate into a requirement that there be unanimous support for a proposal to be adopted. This distinction would be one that he would return to more than once when giving direction to the drafting committee with respect to the consensus that had emerged from each day’s plenary discussions.

The much more focused nature of the February negotiations had the effect of making the attempts of the United States to delay and dilute the convention process much more clear. The U.S. often found little support in plenary, but nonetheless used all of its considerable weight in the drafting sessions to slow progress to a crawl.

Frustration with U.S. obstructionist tactics became so pronounced that by meeting’s end a few drafting committee members were openly expressing their view that the time was coming to force a vote on key articles of the convention.

It may be clear to delegates who spent 11 days in a room with the United States attempting to stonewall progress at each stage of the discussions that they will never vote to adopt, let alone ratify, a meaningful convention. But back in national capitals, extensive discussion may be necessary before governments will come to this conclusion as well.

Deciding to force a vote will be no small matter, particularly in the culture of UNESCO, which attaches such great importance to consensus. In the event of a vote on adoption of a convention, UNESCO rules stipulate that two-thirds of its Member States must vote in favour. But in this case, it is clear that the majority will have to be even more decisive if countries are to proceed without the United States—in the months ahead, it will critical to ensure that a critical mass of countries do not rally to the U.S. in opposing the convention.

The stage is now set for a critical debate when the third meeting convenes on May 23. The issues outlined above will be on the table, along with the key question of what type of dispute settlement mechanism will be built into the convention.

Moreover, these discussions will almost certainly take place under the increasingly watchful eyes of ministries responsible for international trade—reports from Geneva confirmed that many national delegations at the WTO are now in regular contact with their colleagues at UNESCO. Increasing pressure to expunge the convention of any provisions addressing the commercial dimension of cultural goods and services can be expected. The debates on these questions are likely to be pushed up to the very highest levels of government.

All of this means that the next three months represent a critical window for organizations representing artists, creators and all cultural professionals to weigh with their position regarding the convention—a position that should be communicated not only to ministers responsible for culture, foreign affairs and international trade, but even at the head of state and government level. Because the internal debates within each government are likely to be in the end resolved by a decision by each country’s President or Prime Minister. If artists and cultural professionals are to get a truly effective convention, the time to weigh in on these debates is now.

TOP

New Coalition in Slovakia , Others on Way in Hungary , Mali , Cameroon and Italy

During the January 26-27 meeting of the International Liaison Committee of Coalitions for Cultural Diversity (ILC), the ILC Secretariat received word from Slovakia that 20 major cultural professional organizations had come together to establish a new national coalition for cultural diversity.

Hosted by the French Coalition, the meeting was attended by representatives of 11 existing coalitions, who were joined by observers from cultural organizations working to shortly establish new coalitions in Mali , Hungary , Cameroon and Italy .

The creation of the Slovakian coalition brings to 21 the total number of coalitions now in existence. And the January ILC meeting also received several first-hand reports that the rapid growth of the coalition movement is continuing:

• Adama Traore, Director of Mali’s Festival du Théâtre des Réalités, reported that the major organizations representing artists, creators and other cultural professionals in his country would be coming together for a one-day meeting in February to formally establish Mali ’s coalition for cultural diversity.

• Viktor Kazai, legal advisor attending the ILC meeting on behalf of cultural organizations from Hungary , reported that Hungarian organizations were currently in the process individual board level approvals of the proposal to establish a national coalition. This process is expected to be concluded by the end of February.

• Film director Francesco Maselli advised that a nucleus of Italian cultural organizations had recently come together to initiate a coalition in that country, and that these organizations were now in the process of reaching out to other Italian organizations from across the various sectors.

• Joe Mboule, president of Cameroon ’s performing artists union, reported that interest in establishing a coalition is also high, and expressed optimism that a coalition could be formally constituted in his country by the spring.

TOP

Coalitions Meet With INCP Working Group on Cultural Diversity

On January 27, representatives of the International Liaison Committee of Coalitions for Cultural Diversity met for two hours with the working group on cultural diversity and globalization of the International Network on Cultural Policy, the informal culture ministers’ network which since 1998 has been instrumental in building the political support that led to the process now underway at UNESCO to develop a convention on the protection of the diversity of cultural contents and artistic expressions.

The meeting was held in Paris on the eve of UNESCO’s second intergovernmental negotiations session on the convention. ILC representatives Pierre Curzi, Co-Chair of Canada’s Coalition for Cultural Diversity, and Rasmane Ouedraogo, President of Burkina Faso’s Coalition, covered the following points in their presentation to the working group:

• Both well-known actors in their countries, they emphasized the great importance artists and creators attach to securing a truly effective convention that focuses on affirming the sovereign right of countries to have cultural policies that ensure that they have healthy levels of cultural creation and production of cultural contents and artistic expressions—of books, films, television, music, live performance, visual arts and new media.

• Protecting this right of countries to have cultural policies is as important to developing nations as it is to developed countries—losing this right to implement policies in the future would be a grave loss for developing countries, which generally have very few cultural policies actually in place.

• A serious engagement in the UNESCO convention by developed countries to assist developing countries in building their own domestic cultural industries is essential to ensuring true cultural diversity at both the national and international levels.

• The INCP culture ministers must continue their active leadership role in building support for a strong, focused convention, and must help to resist the pressures to dilute the strength of the convention or to stall the process.

• The coalitions movement will intensify its work to mobilize organizations representing artists, creators and all cultural professionals and ensure their unified voice is heard clearly in this debate. In just the past year, the number of coalitions has almost doubled from 11 to 21, and the coalitions are increasingly coordinating their efforts at the regional level. Rasmane Ouedraogo, secretary general of the African network of Coalitions (presided by Senegal and also including Benin, Burkina Faso, Morocco, Togo), advised the INCP that the African coalitions would take the lead role in coordinating the annual exchange of the coalitions with the INCP Culture Ministers at the time of their annual meeting this year in November in Senegal.

TOP