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Reflections of Garry Neil, INCD Executive Director, on the 2nd drafting meeting of the convention

I have just returned from a grueling two week session at UNESCO, where more than 550 delegates from 140 countries, two intergovernmental institutions and 23 Non-Governmental Organizations met to continue negotiations of the draft text of a convention on cultural diversity...


Convention on the protection of the diversity of cultural contents and artistic expressions

Intergovernmental Committee of Experts
UNESCO, Paris
31 January – 11 February 2005

Reflections of Garry Neil,
INCD Executive Director

I have just returned from a grueling two week session at UNESCO, where more than 550 delegates from 140 countries, two intergovernmental institutions and 23 Non-Governmental Organizations met to continue negotiations of the draft text of a convention on cultural diversity.

Plenary Sessions were held Monday to Saturday in the first week and Monday to Friday in the second week, with the final session adjourning at 16.30 hours on 11 February. The Drafting Committee of 24 members elected in September 2004 met for ten sessions and more than 40 hours, and several informal Working Groups were appointed to consider certain elements of the discussion. While the Drafting Group met in the evenings and other times when the Plenary was not in session, the Working Groups often met concurrently with other activities. The Group considering the sections of the Convention dealing with international cooperation was the largest and most active and worked late into the evenings on several days near the end of the meeting.

FINAL DECISIONS
In the final analysis, the Plenary Session considered all of the Articles of the Draft Convention, although discussion on certain Articles was cursory at best. The Drafting Group concluded discussions on Articles 1-11 and presented a text with many brackets and footnotes indicating areas of divergent views and continuing discussions, and the Working Group on International Cooperation put forward a complete revision and consolidation of Articles 12 and 14-18, also with notes. While it started very slowly, serious negotiations began at some point in the middle of the process in the Plenary session, in the Drafting Committee, in Working Groups and informally.

Based on all of this, the Intergovernmental Committee of Experts has authorized the Chair of the Plenary, in collaboration with the Chair of the Drafting Committee, the Rapporteur and the Secretariat, to prepare a consolidated text for submission to member states by early March and presentation to the Executive Board at its meeting in April. Based on “the progress made,” the Committee is recommending that a further meeting of the Intergovernmental Committee be convened 23 May to 4 June to conclude a draft treaty for consideration at the General Conference this coming October.

The consolidated text will incorporate the results of the Drafting Committee and the Working Group on International Cooperation. The rest of the text will also contain brackets and notes, since it must be based on “the specific directives of the Plenary …, using … options or footnotes, to take into account different approaches that might require further consideration.”

OVERALL ANALYSIS
The fundamental disagreement is clear. The United States, supported strongly by Japan, Indonesia, the Philippines, Thailand, Australia, New Zealand and by others indirectly, consistently put forward the position that the Convention should not affect commercial trade in cultural goods and services, and commitments made in the context of trade agreements. Many of these delegations were obstructionist in the process, raising questions about virtually every element of the draft. While on the same side, the delegation of India played a different role – they attempted to broker a deal on many of the non-key elements, while being clear in their view that the Convention should not address commercial trade. In the end, all references to “goods and services,” “cultural contents and artistic expressions,” “protect and protection,” will appear in brackets, and all mandatory requirements implied by the term “shall” will include the option “should” for later consideration.

These States supported the clause that would make the Convention subordinate to the trade and investment treaties through language providing for no derogation from existing rights and obligations. To avoid any confusion about their goal, the United States included in their definition of “protection” that its use in the Convention “shall not enlarge, diminish, or otherwise affect rights, obligations, or responsibilities of States with respect to trade, investment, or intellectual property rights.”

On the other side, the supporters of the Convention were neither as clear nor as forceful in their work during the sessions. The delegation from Brazil was perhaps the strongest and most consistent at all levels during the two week period, with some effective support from China, Croatia, Barbados, Haiti, Saint Lucia, Cuba, Switzerland, the European Union (through Luxembourg), Norway, Canada, South Africa, Senegal, Benin, Nigeria, Costa Rica, Bolivia, Argentina, Mexico, Ecuador and others.

However, among the supporters of the Convention, there is some divergence about what elements are essential for an effective treaty. For example, in place of the clear focus of one of the objectives which had been posed as “ensuring wider and more balanced cultural exchanges,” at the insistence of some supporters, the agreed language now adds the concept that this is being done “in favour of a culture of peace.” Also, a new objective on “interculturality” has been added, further diluting the focus. The developing countries also seem to have conceded too readily in the revised sections on international cooperation. All of the agreed language now provides that States “shall endeavour” to do certain things, a weaker version of the previous obligatory commitments.

The supporters of the Convention suffered from the fact that the European Union was required to speak as one, through the generally ineffective delegation of Luxembourg in the Plenary, and through France in the Drafting Committee. Thus, they could speak only once in each debate and the positions they offered had to reflect a consensus in the European delegation, which was difficult to obtain in certain key areas. In keeping track of the number of delegations speaking on each side of key issues, for several days the Chairman seemed incapable of remembering that Luxembourg was speaking on behalf of the 25 member countries of the EU, and that delegation seemed reticent to remind him forcefully of this fact in each of its interventions.

There was a good deal of unhappiness with the Chairmen of both the Plenary and the Drafting Committee. Neither provided strong leadership on process, allowing hours of useless debate about how to discuss the issues in Plenary or about how to use brackets and footnotes in the Drafting Committee. At the end of substantive debate, the Chairman of the Plenary would often include his own views, despite the fact no delegation had spoken on the particular issue he was raising. There was also a constant struggle between the NGOs and the Chair about access to speaking time. On several occasions, he arbitrarily set a time limit, or limited the number of NGO speakers, despite NGO efforts to coordinate presentations and divide time equitably.

EVALUATING THE OUTCOME AGAINST INCD’S OBJECTIVES
At its meeting in October, the INCD Steering Committee outlined three objectives for the Convention. What follows is a preliminary analysis of the results based on these three objectives:

The Convention must acknowledge the broad scope of policy tools that are used to promote cultural diversity and preserve the right of governments to adapt and adopt new ones in the coming years in response to technological developments and changing circumstances and needs.

On this objective, the results are generally positive. In Article 3, the Drafting Committee text provides a broad scope, “the Convention shall apply to the cultural policies and measures by the [States Parties] that [have an impact on] the diversity of [cultural expressions].” In the definitions, the term “cultural policies” is defined as, “… policies, which [address or affect], whether at the local, regional, national or international level, any aspect of the [cultural expressions] of an individual, community, or society, including the creation, production, distribution, dissemination of, and access to [cultural goods and services].” The term “cultural expressions” also continues to be defined broadly. Obviously, several States have registered reservations about all of these clauses.

While there is agreement to delete Annexes I and II which provided an illustrative list of policies and description of cultural goods and services, the definitions which are still in play may provide sufficient scope for future government actions if the stronger of the remaining options is chosen.

The one area of concern is that there is no explicit reference to the heritage sector, for example through recognition of the need to “preserve” cultural expressions. It might still be possible to address this through an expanded article on the right of States to establish public service institutions, which remains in play.

The Convention must be an effective tool for countries of the South to develop their creative capacity and cultural industries, consistent with other UNESCO instruments that recognize and promote the integral relationship of culture and development.

The results on this objective are less satisfactory. As reported above, the Working Group on International Cooperation has drafted language that provides only that States Parties “shall endeavour to” or “shall encourage” certain actions or undertakings. There is no unambiguous commitment “to incorporate the dimension of culture in their development policies” or “to support cooperation for sustainable development through fostering the emergence of a dynamic cultural sector.”

Only in the area requiring preferential treatment for the South does slightly stronger language remain in play. “Developed countries shall facilitate cultural exchanges with developing countries by granting, through the appropriate institutional frameworks, preferential treatment to their artists and others cultural professionals and practitioners, as well as to their cultural goods and services …”

The status of the Convention must be equivalent to the trade and investment agreements and must prevail where the Parties are considering cultural policies and cultural diversity.

Discussions around this issue are ongoing. However, a new and damaging element emerged during the sessions.

Articles 13 and 19
The primary debate on this issue has revolved around Article 13, which provides that States should work together in other fora to support the objectives of the Convention and Article 19, which has two options. One version would prohibit derogation from all other international instruments and the other would authorize derogation if cultural diversity was “seriously damaged or threatened” by provisions of other instruments. Both versions prohibit derogation from intellectual property instruments.

There was little substantive discussion of this issue during the Plenary, except for several delegations indicating they were searching for a “third way.” On the final day, the European Union offered a written proposition with four elements:

an obligation to “protect and promote appropriately diversity of cultural expressions,” (sic) in other instruments;
an obligation to respect “the specificity of cultural goods and services” and the provisions of the Convention when they are “interpreting and applying” other instruments;
an obligation to foster mutual supportiveness between the Convention and other instruments; and
a statement that this Convention “shall not be subordinated” to other instruments.

On the face of it, this formulation would seem to be stronger than the limited right to derogate permitted by Option A in the original text.

Balancing rights with obligations
The second element in considering the equivalence of this Convention to trade and investment treaties concerns its basic structure. There will be several strong statements, “reaffirming” the sovereign right of States Parties to implement cultural policies. It will appear in the Objectives, the Principles and in the Rights and Obligations of States Parties. However, what emerged during the meeting was reluctance, even by the strongest supporters of the Convention, to assume any corresponding “obligations.”

The power of trade treaties arises because States make concrete commitments to each other. These can be such things as obligations to reduce tariffs, provide National Treatment, ensure transparency, or agreements to include certain economic sectors in their overall commitments. The need for a dispute settlement system arises as a direct consequence of assuming such obligations.

During the past two weeks, virtually all of the “obligations” provided in the Draft Convention have been challenged, primarily by supporters of the Convention. For example, delegations could not even agree that their measures would be “transparent,” eliminating the principle and operative provision and replacing it with a requirement merely to “exchange information”. The principle of “free access” has been reduced from an “essential guarantee,” to being described as constituting an “important element for enhancing cultural diversity …”

In addition to the principle of respect for human rights and fundamental freedoms, the only principle that remains in play in a manner that would constitute an “obligation” to be assumed by States Parties is the principle of openness and balance. It says, in one of its remaining options, “States, when adopting measures … at the national level, should guarantee, in an appropriate manner, openness to other cultures of the world and ensure that these measures are adapted to the objectives of the present Convention.” Note the use of the word “should” rather than the mandatory “shall.”

The obligations being assumed in the section on international cooperation are also modest, being only in the nature of “endeavouring” to do certain things. Finally, with respect to the obligation to protect vulnerable forms of cultural expressions provided in Article 8, there is serious doubt about whether it will be retained in the final Convention, although it remains in play.

This erosion of the substantive obligations may well result in a Convention that cannot possibly be equivalent to the trade and investment agreements, because it merely has the effect of reaffirming the sovereign rights of States to do whatever they want in the cultural field. If there are no limits on these rights, or mandatory obligations, there is no basis for any dispute.

This pressure seems to come from two different directions. There are some States which support the Convention but seem unable to understand what is necessary to achieve its fundamental purpose, and thus they examine each Article in isolation from the others. Perhaps more disturbing, there are some States which support the Convention but appear to be content to conclude the Convention as a political tool and not an effective barrier to the operation of the trade and investment agreements.

The final element in this consideration concerns the follow-up mechanisms in the Convention. Even without substantive obligations, the Convention could still have a reasonable impact if there were a strong commitment from States to continue the discussions about how to protect and promote cultural diversity and how to identify and support vulnerable cultures. But, the States have already agreed to eliminate the Articles establishing a Cultural Diversity Observatory and an Advisory Committee. While there was little consideration in the past two weeks, there is every reason to expect that they will also agree to eliminate all but a fleeting reference to “dispute settlement.” All of this is potentially leading to a situation in which further substantive action on cultural diversity would need to be driven by efforts from the UNESCO secretariat, which is an unlikely scenario.

NEXT STEPS FOR THE INCD
This is a preliminary analysis of the developments of two intense weeks of meetings. If I had written it last week, it would have been far more negative than it is today, so perhaps given additional time to reflect on the developments, I will be more optimistic in the next few weeks.

What is critical is for INCD to remain engaged in the process, since there remains an opportunity to exercise influence over the final outcome. What will be essential before the next meeting of the Intergovernmental Committee will be to mobilize our members in key countries to lobby on behalf of certain of the remaining critical elements, including the section on international cooperation, the Article 13/19 discussion and the nature of obligations that will be assumed by States.

It may be necessary for INCD to re-write the Convention based on the elements still in play, to lobby for certain key matters to be reopened and to conduct a massive email campaign. We should also begin to examine our “bottom line” positions, so that we can speak forcefully at the next Intergovernmental Committee meeting about what elements will need to be contained in the final text for the INCD if we are to continue to support it.

Further information and analysis will be provided in the next few weeks.

14 February 2005

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