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UNESCO Negotiations Yield Proposed Convention,
But Will U.S. Pressure Succeed in Diluting Text
Prior to General Conference?

By now, most readers of this bulletin will have heard the news from Paris earlier this month: UNESCO’s third intergovernmental negotiations session on the proposed convention on the protection and promotion of the diversity of cultural expressions, held May 25 to June 3, produced a text that has been forwarded to the Director General with a recommendation that it be proposed for adoption at the 33 rd General Conference this October.

The big question now becomes what will happen in the weeks leading up to the General Conference:

Will UNESCO, and the overwhelming majority of member states who expressed support for the proposed text during the third negotiations session, hold firm in their resolve to present this version of the text, unchanged in any way, for adoption in October?

Or will intense opposition from the United States cause UNESCO’s Director General, and perhaps even some countries supportive of the convention, to waver, and agree to re-open discussions regarding the content of the convention?

The final version of the text was supported by an overwhelming majority of the 130 member states taking part in the negotiation: the member countries of the European Union, Brazil , China , India , Russia , Canada , the Latin American and Caribbean states, Africa , most Arabic countries and many Asian countries.

In the end, only one country stood emphatically opposed to the convention, and the name of that country will come as no surprise: the United States .

Its position can be summarized in a single declarative statement made June 3 by a member of the U.S. delegation on the closing morning of the negotiations: “The United States votes no.” As a consequence, they said, the convention could not be put forward, “either factually or legally” as a consensus document.

The U.S. went much further in a formal statement released at the conclusion of the negotiations, denouncing not only the content of the convention but also the legitimacy of the process by which it was developed, saying “the rules of procedure—as well as UNESCO’s normal practices—have been inconsistently applied and at times completely ignored,” and that the overall process was driven by an “artificial urgency to produce a completed text in a short period of time.”

“The draft convention […] is deeply flawed and fundamentally incompatible with UNESCO’s Constitutional obligation to promote the free flow of ideas by word and image”.

Rather than being about culture, the U.S. statement argues, the UNESCO convention is actually about trade.

“Because it is about trade, this convention clearly exceeds the mandates of UNESCO. Moreover, it could impair rights and obligations under other international agreements […] it will set back progress toward the economic liberalization that has done so much to increase prosperity throughout the world, particularly in developing countries.”

In his closing remarks, Kader Asmal, the chair of the intergovernmental negotiations sessions, decided to address some of the American criticisms. A former minister of education in the government of Nelson Mandela, and a veteran of international negotiations, he stated flatly that it was a fallacy to argue that consensus depended on unanimity. Nor had the negotiations been “a majoritarian circus.” A sincere attempt had been made to bridge differences, he said, “but in the end the gap was simply too wide.”

But if the U.S. was alone in its head-on attack on the convention, in the course of the negotiations a small number of countries chose to exercise reservations with respect to a number of articles. The proposed language for Article 20, which addresses the convention’s relationship to other international treaties, attracted the greatest number of reservations.

Japan , Israel , Argentina , Chile , New Zealand , Australia and Turkey all reserved their position on Article 20, “expressing their right to propose amendments to this text when it is presented to the General Conference,” noted Rapporteur Artur Wilczynski. (Note: In the weeks since the third meeting, the governments of Argentina and Chile have both formally withdrawn their reservations.)

The impact of the U.S. opposition, combined with the uncertainty created by those countries filing reservations, became clear within days of the closing of the third negotiations session, when the Director General of UNESCO, Koïchiro Matsuura, included the following statement in a June 7 speech to the second meeting of culture ministers of Asia and Europe (ASEM):

“(O)n certain key clauses, it has not been possible to reach a consensus”, Mr Matsuura noted, and expressed the hope that “in the months between now and the time of the General Conference, these differences can be ironed out so that satisfactory wording can be found for all articles. The Executive Board, which will meet in September, immediately before the General Conference, and the General Conference itself, and in particular the Commission IV session dedicated to culture, represent opportunities to do this, and would permit all countries to support without reservation a convention considered to be of such urgent importance by many states. It would be most regrettable were those countries that have recorded reservations on some of the key clauses of this Convention finally to decide not to support it, given its crucial importance and urgency for the protection and promotion of cultural diversity. I can therefore only hope that one more attempt is made to allow culture to unleash its full unifying force and succeed in producing a consensus. It would be the greatest honour that could be done to culture!”

This is a long quote. But we reprint it in its entirety to show how much emphasis Matsuura placed on this appeal. By tradition, UNESCO generally proceeds by consensus, and it is clear the American line of argument that consensus is equivalent to unanimity has had an impact on Matsuura.

During the third negotiations session, there were a number of reports of U.S. pressure being applied on the Director General behind the scenes.

It was also clear during the May-June negotiations that many countries were still holding their own internal debates with respect to the content of the convention. In some cases, these debates were evident even within the delegations at UNESCO. Which raises the question of how solid the support for the convention is among these countries—and what might happen if external pressure was brought to bear on them to support a proposal to re-open negotiations. Because that pressure will surely come.

And one cannot underestimate the seductive power of the siren call to make one last attempt at bringing the United States on-board. The impact—and reach—of the convention would obviously be greater if the Americans would support and ratify it —provided it was a true convention.

But to anyone who has followed the negotiations first-hand, it is patently clear that the U.S. has no intention of signing on to a real convention.

From the beginning, they followed a ‘dilute and delay’ strategy—and based on their recent track record on international treaties, one cannot help but be sceptical about their interest in ever ratifying. Their latest gambit is merely the endgame of this approach.

Many compromises have already been made along the way in order to build the strong majority in support of the text as it now is. From the point of view of organizations representing authors, artists and other cultural professionals, the end result is a crucial first step, even if it is imperfect. It recognizes in international law the distinctive nature of cultural goods and services as vehicles of values, identity and meaning, And it affirms the sovereign right of countries to have cultural policies in order to ensure true cultural diversity domestically—and ultimately at the international level. It is a beachhead from which to build in the future.

The only possible outcome of re-opening negotiations would be a weaker text. This would be completely unacceptable. The time for negotiations is over. Energies should now shift to building the support to ensure that the convention is approved by the required two-thirds of UNESCO’s 192 member states when it is presented to the General Conference in October.

And organizations representing cultural professionals should not be idle during this crucial period. Internal debates will likely continue within governments in many capitals in the run-up to October—particularly with respect to Article 20.

These discussions will extend well beyond culture ministries. Foreign affairs, international trade, and other departments will likely be involved as well. Ultimately, final positions may well be taken at the highest levels of government.

For this reason, it is more important than ever that heads of state and government, as well as cabinet ministers in all departments, hear clearly from cultural organizations that they must hold the line on the convention’s content, resist the pressure to re-open negotiations, support it in October, and ratify it on an urgent basis.

Highlights of the Proposed UNESCO Convention:

The official title of the proposed UNESCO convention is “The Convention on the Protection and Promotion of the Diversity of Cultural Expressions” If adopted at this October’s General Conference it will:

Recognize in international law the distinctive nature of cultural goods and services as vehicles of values, identity and meaning.

Clearly affirm of the right of countries to have cultural policies to ensure genuine diversity of cultural expressions domestically.

Include provisions by which developed countries undertake to support developing countries in nurturing the development of their own emerging cultural industries.

Assert the principle of non-subordination—meaning the legal status of the convention in international law will be equal to that of other international treaties, including trade agreements.

Commit countries to take the provisions of the convention into account not only when entering into other international agreements, but also when applying and interpreting agreements to which they are party.

Include a basic dispute settlement mechanism, creating the potential that in the years ahead the convention will accumulate a body of written decisions on issues of cultural policy that will ultimately influence how culture is treated in trade agreements.

The principal success of the proposed UNESCO convention lies in the fact that it achieves the fundamental objective of recognizing in international law the distinctive nature of cultural goods and services and affirms the sovereign right of countries to take policies in support of cultural diversity.

In this, it represents a historic step in the campaign to establish a new international legal framework specifically conceived from a cultural perspective.

At the same time, the proposed convention represented the first attempt by countries to reach agreement on a treaty addressing this issue, and significant compromises were made along the way to reaching that agreement:

The convention is strong in its assertion of the right of countries to have cultural policies in support of cultural diversity, but this is not balanced with correspondingly strong obligations to implement such policies. In the course of the negotiations, such obligations were diluted to ‘best efforts’ undertakings.

An international development fund will be established, but contributions by countries will be voluntary—member states were unwilling to further than this.

The dispute settlement mechanism provided for in the convention, which consists of conciliation, falls well short of the mechanisms found in trade agreements—binding arbitration, where the process can be triggered unilaterally by one party to a dispute, and countries are required to comply with the resulting decision.

The Big Question: How Will the Convention Relate to Other Treaties?

The question of how the convention would set out its relationship to other treaties was one of the major debates of the entire negotiations, and Article 20, the end result (if it indeed is the end result, and this debate is not re-opened in the months ahead) contains encouraging elements—as well as ambiguities.

On one hand, the principle that the convention will not be subordinated to trade agreements or other international agreements is clearly set out in the title and in paragraph 1. of Article 20.

It also includes an undertaking by member states to take its provisions into account: when applying and interpreting other treaties to which they are party; and when entering into other international agreements.

In fact, this principle—set out in part 1. a) of the article—that parties to the convention should take its provisions into account when interpreting and applying other international treaties to which they are party—may well prove to be the most significant aspect of this article, and may constitute a genuine breakthrough in international law.

Still, the ambiguous nature of the Article 20 becomes evident when one compares paragraph 1 of the article with paragraph 2:

1. Parties recognize that they shall perform in good faith their obligations under this Convention and all other treaties to which they are parties Accordingly, without subordinating this Convention to any other treaty, they:

a) shall foster mutual supportiveness between this Convention and the other treaties to which they are parties; and

b) when interpreting and applying the other treaties to which they are parties or when entering into other international obligations, Parties shall take into account the relevant provisions of this Convention.

2. Nothing in this Convention shall be interpreted as modifying rights and obligations of the Parties under any other treaties to which they are parties.

Reconciling the statements contained in these two paragraphs is no easy matter, and it is again worth noting that in the final 48 hours of the negotiations the delegations for Japan , Israel , Argentina , Chile , New Zealand , Australia and Turkey all received directives from their capitals to exercise reservations with respect to this article until the General Conference.

Meanwhile, the American reaction against paragraph 1. was vehement. They argued its effect would be to subordinate all other treaties to the UNESCO Convention, and until the very end of the negotiations they were insisting that the text put forward to the General Conference include two options for Article 20 for further negotiations: 1) the version ultimately adopted; and 2) their proposal, which consisted solely of paragraph 2. Eviscerating Article 20 will almost certainly be the top priority of their campaign to re-open the negotiations and water down the convention.

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Declarations by Madrid Meeting of Culture Ministers Head Flurry of Statements in Support of UNESCO Convention on Cultural Diversity

The June 11-12 meeting of culture ministers jointly hosted in Madrid and presided by Spain ’s Carmen Calvo, France ’s Renaud Donnedieu de Vabres, and Brazil ’s Gilberto Gil was just the most prominent declaration in a wave of recent public statements in support of the campaign to secure the convention at UNESCO:

“Acknowledging that the protection and promotion of cultural diversity constitutes a common goal, the ministers of culture and representatives of 70 countries and international organizations, of which 45 are ministers or officials of culture, together at Madrid on June 11-12 2005, as signatories of this statement, call for the definitive adoption of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions at the 33rd UNESCO General Conference (October 2005) on the terms recommended by the Third Intergovernmental Experts' Meeting that concluded on June 3rd in Paris.”

In their capacity as co-chairs, Calvo, Donnedieu de Vabres and Gil built on this declaration in a statement of their own in which they emphasized that it is essential that the convention that is ultimately adopted by UNESCO maintain the content of the text developed during the inter-governmental negotiations—a clear signal that they considered the negotiations to be concluded.

Several of the ministers attending the Madrid meeting were in Cordoba two days later for the Eighth Ibero American Conference on Culture. Nineteen ministers and high-ranking officials took part in the June 13-14 gathering, and this group also affirmed their strong support for the UNESCO Convention.

Other recent statements include a June 6 statement by the European Commission hailing the proposed convention as ‘a first in international law’ for the way in which it ‘ legitimises cultural policies and promotes international cooperation’, ‘reaffirms the respect of international obligations whilst obliging Parties to take into account cultural diversity objectives when applying and interpreting all their international obligations, and when negotiating new international commitments.’

Statements in support of the UNESCO Convention were not restricted to the political level. On May 29, in Budapest , Hungary , representatives of arts, media and entertainment unions taking part in the Fourth EURO-MEI General Assembly unanimously adopted a resolution expressing their strong support for the convention:

“This international instrument is necessary because liberalisation and deregularisation of the GATS process are threatening cultural diversity and cultural services. It is necessary to acknowledge the specificity of cultural goods and services, which carry identities and values and cannot, viewed as simple goods or services,” the resolution states.

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Madrid Meeting Participants Urge UNESCO Member States
to Stick to 2005 Timeline, Protect Essence of Convention

Deliver a UNESCO Convention that accords recognition in international law to the distinctive nature of cultural goods and services and clearly affirms the rights of countries to have cultural policies. Stick to the 2005 timeline for adopting the convention. Commit to ratify it on a priority basis. And continue to refrain from liberalization commitments on culture in the context of trade negotiations.

Those were among the main messages for the member states of UNESCO contained in the declaration of the Fourth International Meeting of Cultural Professional Organizations, held May 9 to 11 in Madrid , Spain

Leaders of 170 organizations representing cultural organizations representing authors, composers, directors performing artists, technicians, writers, visual and plastic artists, and new media artists, as well as independent producers, publishers, broadcasters and distributors from 60 countries attended the Madrid Meeting, which carried the theme “Cultural Diversity: A new pillar of the international legal system”.

The meeting was hosted by Spain ’s Coalition for Cultural Diversity, and organized in partnership with the International Liaison Committee of Coalitions for Cultural Diversity, and with the financial support of Spain ’s Ministry of Culture and Ministry of International Relations.

With the goal of securing a finalized version of the convention that could be proposed for adoption at the October General Conference, participants at the Madrid Meeting elected to support the consolidated draft text (April 2005) prepared by the Chairperson of the Intergovernmental Meeting on the convention as the appropriate point of departure for the May negotiations.

Participants urged member states to protect the core of this text, and ensure that the end result remains focused on protecting the diversity of cultural expressions, clearly recognizes the distinctive nature of cultural goods and services and affirms the right of countries to have cultural policies, and is non subordinated to any other international agreements, including trade agreements.

New Coalitions in Brazil , Hungary , and Italy
Bring Total to 26

Hungary ’s Coalition for Cultural Diversity used a May 30 news conference to formally announce its creation by its founding member organizations and to invite other organizations from the country’s cultural sector to join them.

The founding organizations of the Hungarian Coalition are: the Association of Hungarian Artists (MAOE), representing 6,500 painters, sculptors, designers, textile designers, writers, compositors, restorers, and photographers; HUNGART, the Collecting Society of Hungarian Visual Artists; the Association of Hungarian Orchestras; the Hungarian Dancers' Association: the members of this association are natural persons, the professional performing dancers of Hungary; and the Association of Hungarian Artistic Trade Unions, an umbrella organization uniting seven unions representing professional artists and craftspeople.

One week later, during the Florianopolis Audiovisual Mercosur Festival (FAM), Brazil’s Coalition for Cultural Diversity was established on June 7, including the Brazilian Cinema Congress, an umbrella organization bringing together some 45 organizations from the audiovisual sector, the Brazilian Union of Composers, the Association of Brazilian Conductors, Arrangers and Music Directors/Brazilian Music Society, and the League of Brazilian Publishers.

An Executive Committee was also elected, including filmmaker Geraldo Moraes, composer ad musical director Marcus Vinicius, publisher Marta Martins and Debora Peters, a producer.

The priority of the new coalition will be to expand its membership, inviting organizations from all sectors of Brazilian art and culture to join.

And as this issue of Coalition Currents was going into production, word was received that Italy ’s Coalition for Cultural Diversity was formally being established in Rome on June 22. Reports also arrived of the creation of new coalitions in Ecuador , Guinea , Mali and Switzerland —bringing to 30 the total number of coalitions for cultural diversity around the world. A more detailed report on these coalitions will appear in the next issue.

In light of the negotiations mandate entrusted to the European Community by 25 member States for the draft convention for cultural diversity at UNESCO and given the European Community’s exclusive competence with respect to the WTO’s international commercial negotiations, the Coalition s for Cultural Diversity from Germany, Belgium, Spain, France, Ireland, Italy and Slovakia (with a representative from Finland in an observer capacity) have decided to create an alliance, the European Coalition s for Cultural Diversity.

The alliance’s main goal is to advise European institutions and governments of the expectations of cultural creators and professionals with respect to the draft agreement discussed at UNESCO.

Meeting for the first time in Brussels April 19 and 20, 2005 on the initiative of the Belgian and French Coalitions, the representatives of the European Coalitions met Ján Figel, commissioner responsible for education, training, culture and multilingualism, , Nikolaos Sifunakis, Chairman of the European Parliament’s Education and Culture Committee, and Peter Mandelson, Commissioner in charge of Commerce.

The European Coalition s also adopted a declaration (www.coalitionfrancaise.org) which takes pride in that fact Europe is speaking with one voice at UNESCO and expresses the expectation that the European Commission will defend ambitious positions.