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Cultural Exemption Clause Remains Essential as Canada Continues to Pursue Bilateral Trade Pacts With the Doha Round negotiations at the World Trade Organization (WTO) continuing to be deadlocked, Canada was back on the bilateral track in 2008, signing four free trade agreements (FTAs) and announcing further negotiations for 2009. In 2008, the country signed FTAs with the European Free Trade Association (EFTA, which includes Iceland, Liechtenstein, Norway and Switzerland) as well as with Peru, Colombia and Jordan. In each of these agreements, Canada held fast to its position that cultural industries be kept off the negotiating table by seeing to it that a cultural exemption clause was included in the deals. Yet these clauses were not identical in all of the agreements. Though the same definition of cultural industries was used in the EFTA and Peru FTAs, in the agreement with Colombia its meaning was broadened to include the performing arts, visual arts and handicrafts. In the Canada-Peru FTA, while retaining Canada’s standard exemption, Peru also employed annexes to add provisions covering performing arts, visual arts and handicrafts. As has been the case since the FTA with Costa Rica signed in 2001, Canada also included a reference to the importance of cultural policies and cultural diversity in the preambles to each of the FTAs. The UNESCO Convention on the Diversity of Cultural Expressions is not explicitly referenced, however. The year 2009 also promises to be an interesting one as Canada will continue its negotiations with CARICOM, the C4 (El Salvador, Guatemala, Honduras and Nicaragua), Panama, South Korea and the Dominican Republic and launch new talks with the European Union and India. Negotiations with the C4 countries and Panama are expected to conclude shortly. In recent articles published in Embassy Magazine, Peter Kent, Canada’s Minister of State of Foreign Affairs for the Americas, said at the time that the negotiations with C4 could be concluded as early as February, and Stockwell Day, Minister of International Trade, said he was hopeful that a conclusion will be reached in the negotiations with Panama by May, before the current Panamanian President’s term is up. The upcoming negotiations with the European Union, for their part, are likely to be the most important undertaken by Canada since signing of the FTA with the United States more than 20 years ago. These negotiations are scheduled to get under way in May 2009 following the Canada-EU Summit in Prague, in the Czech Republic. Canada and the EU are strong proponents of the Convention and have always advocated the exclusion of culture from trade negotiations. However, their cultural exemption clauses differ in scope, with the EU clause limited to audiovisual services and Canada’s extended to also include the publishing sector. The negotiations towards this Comprehensive Economic Agreement, envisaged as being significantly broader in scope than a basic FTA, will also be worth paying close attention to as they represent an opportunity for two champions of the Convention to give it greater currency by referencing it as rationale for excluding culture from the agreement. Three US Bilaterals Enter Into Force, but Obama Administration Trade Stance Still to Come In recent months, three countries—Costa Rica, Oman and Peru—finally completed all of the steps required for their respective free trade agreements with the United States to enter into force. Almost four years after it was signed and approved by the Costa Rican population in a narrow referendum win in October 2007, the Free Trade Agreement (FTA) between the United States and Central America (and the Dominican Republic) finally came into force for Costa Rica on January 1, 2009. Contrary to other Central American countries, Costa Rica managed to secure certain provisions that will allow it to retain some latitude for adopting cultural policies. Among them, Costa Rica will be able to set national content quotas for radio and television of up to 50%. Moreover, it will be permitted to grant differential treatment to other countries under bilateral agreements (for example, co-production agreements) in the publishing, music and audiovisual sectors. While far from an outright exclusion of culture, these provisions indicate Costa Rica’s negotiators sought to maintain some leeway for their government in the realms of cultural policies. Unlike the case of Costa Rica, the FTA with Oman, which also came into force on January 1, 2009, contains no noteworthy provisions on culture. Although Oman was one of the first countries in the Middle-East to ratify the Convention (March 2007, six months after signing the FTA) and was elected to the Intergovernmental Committee tasked with implementing the Convention, unfortunately it has lost considerable leeway to adopt its own cultural policies by signing this agreement. On February 1, 2009, it was Peru’s turn to have its FTA come into effect. Of all three countries, Peru was the one that managed to secure the most significant cultural provisions in its agreement. For instance, Peru will be able to retain national content quotas for conventional television (30%), conventional radio (10%) and movie theatres (20%). It has also maintained the right to grant preferential treatment to other countries under bilateral agreements, notably co-production agreements, in the field of cultural industries. Of particular importance here is that the definition of cultural industries not only includes the usual sectors of publishing, music and audiovisuals, but also encompasses the performing arts, visual arts and handicrafts. Peru also secured additional provisions giving it greater latitude in the handicrafts, visual arts, performing arts, music and publishing sectors. Despite these important provisions, Peru in no way obtained the full and outright exclusion of culture from this deal. Moreover, some of these provisions are limited, such as in the case of the television sector, where the country will lose its right to set national content quotas with the transition to digital TV. The new Obama administration has yet to announce its trade strategy for the coming years, and this may be further delayed by the current economic crisis. For the time being, negotiations at the WTO are at a standstill and since the “fast-track” trade authority ended in July 2007, the United States has not been actively pursuing bilateral negotiations, other than with Malaysia (these talks were launched in 2006 and the most recent round held in July 2008). Finally, it should be noted that three other bilateral agreements the United States has signed with Panama, Colombia and South Korea have yet to come into force. While the Panamanian and Colombian legislatures have approved the agreements, the U.S. Congress have so far refused to ratify the deals and the Obama administration remains tight-lipped about the future of these agreements. The U.S.-South Korea FTA has not yet been ratified by either government. December Convention Intergovernmental Committee Meeting: Preferential Treatment Discussion Triggers Debate on 2005 Convention’s Relationship to WTO The relationship of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions to trade agreements may not have been officially on the agenda for the December meeting of the Intergovernmental Committee, but it nevertheless surfaced as a major source of discussion before the meeting had come to a close. The trigger for the discussion was a debate on Article 16--which commits developed countries to take actions to accord preferential treatment to artists and cultural professionals from the developing world, and to similarly act to improve the circulation of cultural goods and services coming from developing countries. The question of how to make good on this commitment inevitably raises the question whether the approaches to be taken within the still-to-be-drafted operational guidelines for Article 16 will create overlap with the World Trade Organization (WTO). The initial debate on this theme--enriched by six experts’ reports on the issue--revealed that at this stage States on the Intergovernmental Committee have quite different perspective on how best to deal with this question. With the country best-known for voting against the Convention--the United States--monitoring the debate with great interest, Brazil emerged as the State most intent on initiating a discussion on the Convention’s relationship to the WTO sooner rather than later. During the three-hour debate on Article 16, Brazil repeatedly returned to the position that there were clear risks associated with not initiating this reflection sooner rather than later --that failing to take the initiative increased the danger that decisions based purely on the commercial dimension of culture would be taken at the WTO that would create problems for the effective implementation of the Convention. Brazil went so far as to offer to sponsor a seminar at the WTO on the question--prompting an arch riposte by Pierre Defraigne, Executive Director of the Madariaga-College of Europe Foundation, and one of two expert coordinators, along with Vera Helena Thorstensen, who presented an overview of the experts’ reports to the Committee: "You should get the WTO experts to come to Paris. It would do them some good." Mr. Defraigne also stressed the importance of States Parties to the Convention fully developing their perspective on this relationship before initiating a discussion with the WTO. India, meanwhile, proved most reticent on the question, emphasizing in a number of statements that the rationale for initiating the Convention at UNESCO had been to approach the challenges of protecting and promoting the diversity of cultural expressions from a fundamentally cultural perspective. Other Committee members indicated that it was premature to initiate a discussion on this question. This was the position taken by the Francophone group, as expressed by St. Lucia. The European Commission also intervened in the same vein, stressing that it was important to maintain a clear distinction between making Article 16 operational, and the still-to-come work on addressing Articles 20 (relationship of the Convention to other international instruments) and 21 (promoting the objectives of the Convention in other international forums). Canada, in its intervention, emphasized the importance of establishing a framework and terminology for the operational guidelines of Article 16 derived from the language of the Convention itself; it also proposed that a reference to Article 20 be incorporated “so as to remind Parties that it is their responsibility to ensure that the measures they take on this question in the context of commitments in other treaties are coherent” with Article 16. The debate was unresolved. At the conclusion of the exchange, the Committee agreed that States Parties to the Convention should be invited to provide input to the matter of making Article 16 operational--and it is important to emphasize that much of this will focus on concrete actions that can be taken to facilitate the movement of artists and cultural professionals and cultural goods and services from developing countries. The timeline is tight: the Convention Secretariat has committed to distribute the questionnaire by December 19, requesting written comments by January 30. Informed by these contributions, and the December debate, the Secretariat’s challenge will be to prepare draft operational guidelines for examination during the final meeting of the Committee that will take place March 23-25 before next June's second Conference of Parties to the Convention. The United States’ interest in this debate was demonstrated by the rare presence of its Ambassador Louise Oliver. Mrs Oliver, a nominee of the Bush administration, asked that Parties that have not ratified the Convention be able to provide written comments on Article 16—insisting on this point by noting that all Parties contribute to UNESCO’s operating budget (an unsubtle way of underscoring the U.S. dues are a major portion of the agency’s budget). The request was considered, but the Committee decided to limit States interventions to those that have ratified. One win for civil society is that the Committee agreed to invite non-governmental organizations to respond to the Article 16 questionnaire, which is appropriate given that many organizations in the cultural sector have detailed knowledge of the problems many artists and cultural practitioners face when navigating the challenge of obtaining visas and work permits. While the Article 16 debate was conceived as a preliminary discussion, by contrast the Committee was intent on completing operational guidelines for the International Fund for Cultural Diversity and succeeded after lengthy debate. Civil society organizations will be able to submit projects for the Fund, provided they secure the support of the countries in which the projects are being carried out. The criteria for the Fund were drafted in such a way as to enable developed countries to route money from their international development agencies into the Fund, which is hoped will significantly increase its base of contributions. To date, barely US$1million has been paid into its account. The Committee also debated operational guidelines for several other articles, and succeeded in adopting guidelines for Article 13 (integration of culture into sustainable development) and 14 (international cooperation for development). The meeting concluded with the election of a new Bureau to guide the proceedings of the March meeting. Vera Lacoeuilhe of St. Lucia was elected Chair. The agenda for that meeting will include:
Caribbean Cultural Organizations Task Force Meets in Barbados, Launches Process for Creating a Caribbean CCD Seven representatives of cultural and civil society organizations from six English-speaking Caribbean countries gathered in Bridgetown, Barbados, on February 9 2009 for a meeting of a task force of Caribbean cultural organizations established at the conclusion of the First Meeting of Professional Cultural Organizations from Commonwealth Caribbean Countries held in Port of Spain, Trinidad, last July. The Barbados meeting resulted in the decision by the participants to move forward with the plan to establish a regional coalition and to begin immediately initiating national consultations to that end. Working group members will therefore begin consultations with all the organizations that took part in last July’s Port of Spain meeting before extending the exercise to organizations in other English-speaking Caribbean countries. In a news release issued following the meeting, the Task Force called upon all Caribbean states that have not yet done so to ratify the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, noting that only four countries from the region have ratified the instrument to date. The Task Force also stressed the importance of coherence between the Convention and other international treaties and expressed reservations about the relevance of linking cultural cooperation protocols to trade agreements, as in the case of the Economic Partnership Agreement between the European Union and CARIFORUM countries. Jim McKee, General Secretary of the IFCCD, attended the Barbados meeting on behalf of the Federation. Both the Bridgetown and the Port of Spain meetings were made possible by funding provided by the Commonwealth Foundation, the civil society arm of the Commonwealth. Djibouti Coalition Newest IFCCD Member On February 21, the Djiboutian Coalition for Cultural Diversity (DCCD) completed the process to become the newest member coalition of the IFCCD. Abdi Issa Boulaleh is President of the Coalition, which represents some 10 professional cultural organizations from Djibouti. The DCCD is the 17th coalition to be established in Africa and the 20th from a Francophonie-member country. Djibouti was the seventh state to ratify the Convention when it tabled its ratification instruments at UNESCO headquarters on June 9, 2006. |
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