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UNESCO Convention Implementation: Taking Stock After Two Sessions of the Intergovernmental Committee The conclusion of the first extraordinary session of the Intergovernmental Committee (IGC) for the UNESCO Convention on the protection and promotion of the diversity of cultural expressions in Paris on June 27 marks the mid-way point of the first two-year phase for implementing the Convention. With the second Conference of Parties for the Convention less than one year away—it is set to take place in June of 2009—now is an appropriate time to take stock of the progress made to date, and issues still to be dealt with in the two remaining sessions of the Committee (an ordinary session scheduled for the week of December 8, and an extraordinary session expected to take place no later than March 2009). After two sessions, the Intergovernmental Committee has made significant strides in elaborating operational guidelines for the two articles that are at the very heart of the Convention—Articles 7 (measures to promote cultural expressions) and 8 (measures to protect cultural expressions). It has also made important headway in terms of developing operational approaches to several elements relating to the key theme of international cooperation, including the International Fund for Cultural Diversity. And it has developed operational guidelines for engaging civil society in the implementation of the Convention, including establishing a definition of civil society organizations within the context of the Convention. As a result, although further progress on a number of articles will be needed at the IGC’s next sessions, it now looks quite likely that the Committee will be in a position to submit proposed operational guidelines for these articles for review and adoption by the June 2009 Conference of Parties, along with guidelines for several other articles, including: 11 (participation of civil society in implementation), 12 (promotion of international cooperation), 13 (integration of culture in sustainable development), 14 (cooperation for development), 15 (collaborative arrangements), 17 (international cooperation in situations of serious threat to cultural expressions), and possibly 16 (preferential treatment for developing countries). However, a growing question is whether any work will be initiated in the IGC’s remaining two sessions with respect to the fundamental question of articulating the Convention’s relationship to other international agreements, notably by developing operational guidelines for Article 21. If this issue does not make its way onto the agenda of the ordinary session in December, the consequence will be that operational guidelines for Article 21 will slip to the next phase of implementation leading up to the third Conference of Parties in 2011—almost three years from now. We return to the potential implications of this outcome at the end of this article, but first, a brief overview of the results of the June session (note that specific outcomes relating to the role of civil society follow in a separate article). Protection, Promotion of Cultural Expressions The IGC adopted operational guidelines for Article 7 (measures to promote cultural expressions) Article 8 (measures to protect cultural expressions in special situations where cultural expressions are at risk of extinction, under serious threat, or otherwise in need of urgent safeguarding) and 17 (cooperation among Parties to deal with situations referred to in Article 8, in particular when faced by developing countries). The guidelines ultimately adopted by the Committee were significantly revised from the drafts prepared by the Convention Secretariat. With respect to Article 7, the net effect was to remove language that would have introduced a somewhat more prescriptive expectation on States to take action in terms of policies and other measures to promote the diversity of cultural expressions. Beyond affirming the sovereign right of States to apply policies, the Convention itself leaves a largely free hand to States to determine what policies and measures it considers necessary. Amendments proposed by the Francophone group not only sought to make the guidelines less prescriptive, but to provide a more general framework better able to accommodate technological changes, while also fostering better information-sharing among parties. The debate with respect to Article 8’s operational guidelines clarified that only a States Party could determine the existence of special situations where cultural expressions on its territory are at risk and what action is appropriate—and that the State may do so without prior consultation with the Intergovernmental Committee. The IGC’s role in this regard is limited to making recommendations. At the same time, the session’s Rapporteur, Antonio Ricarte of Brazil’s permanent delegation, noted that many delegations “acknowledged the central role of reporting in allowing the Committee to offer support and recommendation to the Parties”. International Cooperation: Significant Progress, Major Work Still Ahead Building on work initiated at its inaugural session in Ottawa last December, the IGC adopted proposed operational guidelines in June for Article 15 (collaborative arrangements), which focus on defining the concept of partnerships for international cooperation, and modalities for pursuing these. Other developments:
Next Steps On June 27, the final day of the Committee’s four-day extraordinary session, UNESCO Assistant Director-General, Culture, Françoise Rivière, noted that the following articles would be on the agenda for the Committee’s second ordinary session starting December 8:
In order to ensure that a maximum of operational directives were completed and translated into UNESCO’s six official languages in time for the second Conference of Parties in June of 2009, Ms. Rivière emphasized that the second extraordinary session would need to be held quite early in 2009. It is not clear at this point whether the issue of developing operational guidelines setting out avenues for States Parties to work in coordinated fashion to promote the objectives of the Convention in other international forums—i.e. Article 21—will make its way onto the agenda for the December session. The International Federation of Coalitions for Cultural Diversity (IFCCD) considers it fundamental that Article 21 be made operational on a priority basis. Promoting the Convention’s objectives and principles in other international forums will be key to realizing its full legal and political potential, in particular its dimension as a counterweight in international law to the pressure on countries to renounce or sharply limit their right to apply cultural policies by making liberalization commitments on culture in trade negotiations. The IFCCD also believes there is a case to be made for developing specific operational guidelines for Article 20 (Relationship to other treaties: mutual supportiveness, complementarity and non-subordination). While Article 21 can be viewed as the vehicle through which the provisions of Article 20.1 b) can be made operational, the Federation prefers to see both articles situated directly within the Convention’s operational framework. Given that Article 20 is the reference point for any discussion of how the UNESCO Convention relates to other international agreements, its provisions should be taken into account in any situations where interpretation is called for when the Convention’s scope overlaps with that of another agreement, such as a trade agreement, to which a given State is also a signatory. These articles are essential vehicles for ensuring that the full legal and political weight of the Convention as an international instrument for upholding the right of countries to apply cultural policies is realized. A fundamental dimension of this entails countries maintaining coherence in their actions—crucially, by not renouncing in trade negotiations the right to apply cultural policies that they have so emphatically affirmed in the Convention. With the WTO Doha Round negotiations stalemated, and new Free Trade Agreement bilaterals unlikely to be launched by the United States until the dust settles after the U.S. Presidential elections in November, there is a window of opportunity to develop channels for States to coordinate and consolidate an ongoing consensus on refraining from liberalization agreements in such negotiations. It should also be noted that many, many States are now pursuing a growing number of bilateral and regional negotiations in light of the growing scepticism that the Doha Round will ultimately produce a deal. The European Union has already adopted its own approach: inserting a cultural cooperation protocol as an annex to new regional and bilateral trade agreements it negotiates. The protocol is the subject of a separate article in this bulletin. A final note: one theory has it that the Committee has opted to defer discussions around Articles 20 and 21 until a greater number of States have ratified. Given the sensitivities with respect to how the Convention will intersect with trade agreements, it is believed some have been concerned that initiating this discussion too early might deter some States from ratifying the Convention. With 90 States now having ratified, however, and a recent renewal of ratification momentum, such concerns should recede and not impede addressing a critical dimension of the Convention sooner rather than later. IFCCD Representation at the IGC The International Federation of Coalitions for Cultural Diversity had observer status for the Paris session, and was represented by its President, Rasmané Ouedraogo, Europe Vice-President Beat Santschi, General Secretary Jim McKee, Geraldine Loulergue, Coordinator of the French Coalition, and Michaela Kozaric, also of France’s Coalition.
Civil Society: A Landmark Exchange, An Ongoing Discussion The role of civil society in the implementation of the Convention was not only on the agenda for the June session—it was also the exclusive focus of a first-time exchange between UNESCO member States and civil society organizations that took place June 23 on the eve of the IGC session. The session was attended by more than 100 governmental representatives and an equal number of representatives from civil society, and focused on three specific themes:
Moderated by Ambassador Ina Marciulionyté, Permanent Delegate of Lithuania, the civil society interventions were launched by introductory interventions on behalf of the non-governmental organizations present delivered by Rasmané Ouedraogo, President of the International Federation of Coalitions for Cultural Diversity (IFCCD), and Garry Neil, Executive Director of the International Network for Cultural Diversity (INCD). Several NGOs also made interventions in the subsequent exchange—notably to provide illustrations of international cooperation initiatives their organizations are already engaged in—including the International Federation of Musicians (FIM) and the International Federation of Actors (FIA). A summary document setting out the recommendations from civil society organizations was subsequently provided to the UNESCO Secretariat and circulated to Member State delegations. The June 23 exchange set the stage for the formal discussion on Article 11 during the actual session of the Intergovernmental Committee. The operational guidelines ultimately adopted by the IGC define civil society as “non-governmental organizations, non-profit organizations, professionals in the culture sector and associated sectors, groups that support the work of artists and cultural communities.” Recognizing the “essential role” of civil society in implementation, the guidelines set out a number of specific avenues for engaging civil society:
With respect to the contribution of civil society to the work of the organs of the Convention, the operational guidelines provide for accredited observer NGOs to be able to:
Inspired by the June 23 exchange, the operational guidelines also provide for civil society organizations to maintain a dialogue with the Parties “in an interactive manner with regard to their positive contribution to the implementation of the Convention, preferably, as appropriate, before the sessions of the organs”. Draft criteria for accrediting civil society organizations as observers for the Conference of Parties and meetings of the Intergovernmental Committee are as follows:
In Limbo: Access of Civil Society to the Fund for Cultural Diversity The role of civil society in the context of the International Fund for Cultural Diversity was discussed during the IGC’s debates regarding priorities and procedures for the Fund. The result of these debates was that the question of whether civil society organizations will be able to access the Fund has been deferred until the December meeting—references to civil society in this regard were literally placed in brackets pending this discussion. While there is some reason to be optimistic that civil society will ultimately be granted access to the Fund, an important related issue will be the conditions for their accessing the Fund. During the debates, it was clear that a significant number of States want to establish a requirement that civil society projects obtain the support of one or more member States in order to be eligible. Civil society organizations voiced the concern that imposing such conditions could seriously limit the number of projects that are actively moved forward for consideration. After a Lull, Renewed Momentum on Ratification A recent increase in the rate of ratifications being deposited with UNESCO gives reason to hope that the marked slowdown during the period between November 2007 and April of this year was not an enduring phenomenon. After the Convention on the diversity of cultural expressions was adopted in October of 2005, the ratification campaign got underway with remarkable speed. By December of 2006, the minimum number of 30 ratifications required for the Convention to enter into effect had been easily surpassed—and by its entry into force on March 17 of 2007 the number had risen to 56 States. The remarkable pace prompted UNESCO Director General Koïchiro Matsuura to state that it was “an absolute record for a normative instrument on culture.” But by the time of the inaugural Intergovernmental Committee meeting in Ottawa last December the rate had slowed considerably. In the months of November and December, just three States deposited their ratifications with UNESCO, and in the four-month period from January to April, only three more did so. So it was encouraging that on the eve of the extraordinary session of the Intergovernmental Committee several new ratifications appeared on the UNESCO website—first Argentina, Hungary and Zimbabwe, followed shortly after by Chad, Sudan, Seychelles, Montenegro, Georgia, Switzerland and Ethiopia. As a result, the total number of States having ratified has now risen to 90, and with another ratification push consisting of States striving to file by next March—in time to be eligible for the second Conference of Parties next June—it is entirely possible that the total number will have surpassed 100 by next spring. The challenge of achieving regional balance remains. While India and China have ratified, relatively few Asian countries have so far done so. The situation is similar in the Arab world (although there are indications that Morocco may soon join Egypt, Jordan, Kuwait, Oman and Tunisia in having done so). The same holds true for English-speaking Africa, and the Caribbean. EU Cites UNESCO Convention in Embedding Cultural Cooperation Protocol in Trade Pacts A recently-concluded Economic Partnership Agreement (EPA) between the European Union and CARIFORUM marks the first time that the UNESCO Convention on the Diversity of Cultural Expressions has been cited to justify according cultural goods and services special treatment in the context of a trade agreement. In the negotiations, the European Union took the initiative of proposing that a cultural cooperation protocol be annexed to the EPA with the aim of contributing to increased exchanges in cultural goods and services, notably by according preferential treatment to artists and other cultural professionals and practitioners from the Caribbean, favoring audiovisual co-productions, and by promoting common standards in the cultural sector. The cultural cooperation protocol with CARIFORUM is based on a model text that the European Union developed in 2007 and which it intends to adapt and build into other (although not all) trade agreements. These include negotiations now underway with the Euromed countries, Korea, India, ASEAN, the Andean Community and Central America. Structuring the protocol as an annex to the EPA made it possible to build in preambular language by which States that have not ratified the UNESCO Convention express their intention to do so promptly. So far, only Cuba, Jamaica and St. Lucia have ratified from CARIFORUM; all but three of the EU’s 27 States have ratified—only Belgium, the Czech Republic, and the Netherlands have not. The protocol preamble also expresses the intention of the Parties to implement the UNESCO Convention. Articles 14, 15 and 16 are specifically cited as the basis for the cultural cooperation protocol. The preamble also recognizes “the importance of the cultural industries and the multi-faceted nature of cultural goods and services as activities of cultural, economic and social value.” The main body of the protocol provides for:
Practical Impact In terms of facilitating the movement of artists and other cultural professionals and practitioners from the developing world, the cultural cooperation protocol with CARIFORUM appears promising because it marks the first time that the EU has elected to rule out entry quotas, economic tests or eligibility criteria for non-EU artists. In principle, this would rule out citing economic criteria as a basis for refusing a visa application. However, it should be noted that visa policies fall under the authority of individual member States. In other words, coordination between the EU and member States will be required if Caribbean artists are going to experience easier access to the EU. If this does not happen, there is a danger that expectations that have been raised on this count will not be realized. Treaty co-productions with the EU have the potential to be a very interesting avenue for the Caribbean audiovisual sector, because works produced and certified under these agreements will benefit from preferential market access by being deemed to be European content for the purposes of the EU’s Audiovisual Media Services Directive. However, the ultimate impact of many of the other provisions of the protocol will depend on the cultural sector taking the initiative to develop projects consistent with its aims that can be supported by the international cooperation section of the European Union. Current Status of the EU-CARIFORUM EPA Concluded in December of 2007, the EU-CARIFORUM EPA cultural cooperation protocol is noteworthy because it represents a milestone—the first time the UNESCO Convention has been referenced in a trade agreement to justify treating cultural goods and services in a distinctive manner. Moreover, it represents an agreement between 43 States—the 27 member States of the European Union, and 16 members of CARIFORUM. However, the EPA remains to be signed—it has in fact become the focus of widespread controversy across the Caribbean, which points to one downside of linking cultural cooperation initiatives to trade pacts. Expectations that the EPA would be ratified by all CARIFORUM members earlier in April were not realized, and a second end-of-June deadline was also not met. Plans for a September 2 signing by Caribbean States have now been postponed as well. Implications for Future Trade Pacts: A major question is how the protocol will be adapted to other agreements the EU is now negotiating—in particular in negotiations with countries such as India and South Korea, both of which are major producers of films, television programs, music and other audiovisual content. France’s Coalition for Cultural Diversity has already stressed the importance of ensuring that this principle is insisted on in negotiations with countries that clearly qualify as developed countries in the audiovisual sector. There are a number of dimensions to this—do the partner countries have national content quotas for film screens, television, or broadcasting? Do they have funding programs reserved for the production of domestic cultural content? Reciprocal access to these has been the bedrock rationale for negotiating co-productions treaties. The EU backgrounder does note that the protocol will not be incorporated into all trade agreements that the EU negotiates. The protocol was specified for negotiations with CARIFORUM, Euromed countries, Korea, India, ASEAN, the Andean Community and Central America. However, no such negotiating directive was specified for negotiations currently underway with China. Pros and Cons of the Cultural Cooperation Protocol Approach The fundamental advantage of systematically integrating a cultural cooperation protocol into trade pacts is coherence—it is a means of setting clear marching orders regarding the treatment of cultural goods and services for trade ministries responsible for negotiating trade agreements. Well-executed, the protocols could also prove to be effective instruments for simultaneously achieving the dual defensive and proactive objectives of the Convention—of both ensuring that countries refrain from liberalization commitments on culture, and work together to put in place international cooperation initiatives favoring improved circulation of cultural goods and services across their borders. There is also the undeniable reality that trade deals are consistently the focus of major investments of political capital by the governments negotiating them—it is fair to ask whether cultural cooperation protocols would be the subject of an equivalent commitment if initiated as stand-alone agreements. But in linking cultural cooperation to trade pacts, the approach could have the ironic consequence of transforming culture into a selling point for proceeding with trade deals that, as the EPA controversy in the Caribbean demonstrates, can be the subject of wide-ranging controversy for reasons having nothing to do with culture. The EU’s proposed EPAs with African member States of the African, Caribbean and Pacific States (ACP) are similarly proving controversial. Finally, the approach of going beyond a simple exclusion of cultural goods and services to a proactive cultural cooperation protocol that specifically engages signatories to pursue initiatives such as co-productions points to the need to ensure that culture ministries (where the expertise on co-productions and cultural policies in general resides) are actively involved in the negotiations from the beginning, and that organizations representing artists, creators and cultural professionals are systematically consulted throughout the progress of such negotiations. Caribbean Cultural Organizations Gather in Port of Spain Representatives of some 20 professional cultural organizations from Caribbean member States of the Commonwealth met in Port of Spain, Trinidad and Tobago, July 6-8 to discuss the UNESCO Convention on the protection and promotion of the diversity of cultural expressions—in particular, its potential for supporting the development of the cultural industries of the region. Participants unanimously recognized the urgent need to work together advocating that their respective governments ratify the 2005 UNESCO Convention on a priority basis and engage civil society in its implementation. Ten Caribbean States were represented at the Port of Spain meeting. To date, only two of the 11 Caribbean member States of the Commonwealth have ratified the Convention—Jamaica and St. Lucia. The first day of meetings centred on presentations by Ivan Bernier, Professor Emeritus, Faculty of Law, University of Laval, Quebec, and Véronique Guèvremont, also a professor of international law with the University of Laval, on the evolution of the campaign for the UNESCO Convention and the key role cultural organizations need to play in ensuring its implementation. The day also included a roundtable exchange with participants concerning the status of their government’s plans to ratify the Convention, and more specific discussions concerning sectoral policy debates currently underway across the region. The second day’s agenda focused in greater depth on issues specific to the development of the Caribbean’s cultural industries. The day featured a presentation by Blockbusters and Trade Wars author Peter Grant on elements of the cultural policy toolkit that Caribbean States could make use of in ensuring Caribbean cultural content is available across the region as well circulating more widely at the international level. Dr. Keith Nurse, Director of the Shridath Ramphal Centre for International Trade Law, provided a detailed overview of the current state of economic development of the Caribbean cultural industries. Dr. Nurse is one of six experts recently commissioned by UNESCO to prepare papers addressing the challenge of making operational Article 16 of the Convention, which undertakes States Parties to accord preferential treatment to artists and creators, and cultural goods and services coming from developing countries. In the afternoon session, Kentillia Louis of the Cultural Development Foundation, St. Lucia, Erica Smith of the Copyright Society of Composers, Authors and Publishers, Barbados, and Ian Randle of the Caribbean Publishers' Network, Jamaica, reported on the current state of affairs in their respective cultural sectors, launching a discussion enriched by several contributions by other participants in the room. Participants adopted a final declaration affirming the urgent need for their governments to ratify the UNESCO Convention, uphold its principles and objectives in future trade negotiations, and actively engage civil society in implementation of the Convention in terms of concrete policy action to support the cultural sectors of the Caribbean. A task force was also established to support work to this end, and to lay the foundation for an eventual Caribbean coalition for cultural diversity. The meeting was organized by the International Federation of Coalitions for Cultural Diversity in association with Canada’s Coalition for Cultural Diversity, the Institute of International Relations of the University of the West Indies and CAFRA (the Caribbean Association for Feminist Research and Action), and was made possible by the financial support of the Commonwealth Foundation. Commonwealth Foundation, South Africa’s Culture Department, and South African Coalition for Cultural Diversity Cooperate for Cultural Policy Consultation This past May, as part of its research into issues of cultural policy and culture in development, the Commonwealth Foundation, in partnership with the South African Coalition for Cultural Diversity (SACCD) and South Africa’s Department of Arts and Culture (DAC), held a consultation with members from key government and civil society organizations in South Africa. The consultation focused on three key questions:
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