The second session of the intergovernmental meeting of experts on the Preliminary Draft Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions was held at UNESCO from 31 January to 12 February 2005. A previous draft had been examined during a previous session (September 20-24, 2004).
Following this first session, the member states of UNESCO submitted 61contributions. The European Union has submitted a substantial contribution on behalf of its 25 member states (+Croatia and Romania). A Drafting Committee, constituted by 20 countries, met from 14 to 17 December 2004, to examine the Preliminary Draft.
Let us consider the situation on the eve of this session, with a particular attention to the position of a new actor within the UNESCO, the European Union.
On November 15th, 2004, the European Union presented a communication to UNESCO about the Preliminary Draft Convention.
Since this Convention concerns some commercial issues, it comes under the exclusive competence of the European Union (article 133, PCC) (cultural competences being for their part supportive of the national cultural competences) and brings a communautarisation of the negociating process (in fine, the European Union should be signatory of this Convention along with its member States members). The communautarisation of this affair entails an advantage : 25 five countries speak with an united voice.
The commentaries expressed by the European Union represent a very positive contribution. EU notes that this Draft Convention incorporates fundamental principles such as :
the fundamental role of the respect for human rights and of fundamental freedom guaranteed by international law; the Convention shall not in any case weaken human rights and fundamental freedom in the name of culture or traditions ;
the acknowledgement of the specific double nature (cultural and economic) of cultural goods and services ;
the acknowledgement of the public policies in protecting and promoting cultural diversity and of the sovereign right of States, and other appropriate public authorities, in this respect ;
the importance of international collaboration to cope with cultural vulnerabilities, notably in developing countries ;
the requirement of an appropriate pronunciation with other international instruments and authorities to allow the real implementation of this Convention while preserving juridical security of the international obligations, be they those of this Convention or of other international agreements.
The paragraph on the rights and obligations relating to international collaboration is of particular interest. Due to its strong links with some of these regions (ACP, Euro- Mediterranean dialogue), EU is particularly sensitive to ways and means to foster the cultural expressions of least developed countries. Hence its desire to review articles 12, 16 (aid to development) and 18 (partnership for development).
Concerning relations with other international instruments (namely WTO agreements), EU distances itself from proposals on the table (article 19).
The actual text in one of its variants says that primacy is granted to UNESCO Convention over WTO agreements when " those would have a serious harm in the diversity of cultural expressions or serious threat ".
The EU finds this expression unsatisfactory for the following reasons. It is difficult to assess what would constitute a serious harm or a serious threat to cultural diversity. That illustrates the limits of the parallelism with the international Convention on biodiversity. While attacks on biodiversity can quite readily be measured, attacks on cultural diversity would be difficult to assess (opposition effect of nature / effect of culture). WTO agrees to take into account the Convention on biodiversity in its panels, softening up the strictly commercial interpretation of the WTO agreements. Such would not be the case with the Convention on cultural diversity, since there is no provision authorizing the WTO'S Dispute settlement Body to incorporate such rules in its interpretative corpus.
Finally, the UNESCO Treaty would predominate over the previous treaties (in the hypothesis of this clause on threat or attacks), but not over forthcoming treaties, by virtue of the principle of the hierarchy of treaties (the later treaties prevailing over previous treaties, unless explicit contrary clause).
The article 19 remains one of the big issues of the future negotiation. It could bring an important added value if the Convention were to provide a better articulation between the right of trade and the right of culture. (That is to say the international acknowledgement of the legitimacy of public policies supportive of culture).
This debate follows the discussion introduced by former EU commissioner Pascal Lamy on collective preferences. According to him, if the concerns of trade are legitimate, so are the efforts to preserve the public health, environment, cultural choices and cultural diversity. Hence the preoccupation of the " worldwide legislator " should be to adress these different legitimacies to lower the level of tension generated by their coexistence. In this perspective, the debate in UNESCO is of an evident modernity.
Finally, the Draft text should be amended regarding its capacity to settle disputes. It presently envisages optional and complex mechanisms of dispute settlement. The Convention authority should be reinforced by including an actually missing interpretative and dispute settlement mechanism.
Position of other countries
Position of US
US is by principle opposed to this Convention that they consider to be an anti-WTO war machine, intended to break the dominance of their audiovisual industries in Europe and in the world. US representatives started by trying to erase, article by article, every disposition of the Draft Convention.
Their strategy aims presently at signing bilateral agreements that would prevent the signing countries to implement public policies in support of their audiovisual industries (quotas, obligations of investment, restriction on foreign ownership of mass media, control by the State of satellite, online activities, by cable.) The bilateral agreement USA / Morocco is the most recent illustration of this approach. It must be stressed that countries that have signed such bilateral agreements even with the best intentions will not be able to invoke the UNESCO Convention that has no provision to draw the nullity of such agreements.
American strategy is therefore logical: "corrupt " the most possible the field by bilateral agreements and make everything to restrict as much as possible the range of the Convention that should be adopted as late as possible.
India, Brazil, Mexico, China supported the process and brought positive contributions to the Draft Committee.
Senegal has complained about the weak attention granted to the developing countries in the process.
A first balance sheet at the end of this second session
At the end of this session, all the elements of the Draft Convention could not be examined by the plenary assembly (except dispositions relating to the dispute settlement).
Besides refering to the Draft Committee, working groups were constituted to examine some definitions :
Working group on the notion of protection ;
Working group on the notions of goods and services ;
Working group on articles 12 - 18 (promotion of cultural diversity).
The Draft Committee introduced on February 11th, 2005 a text concerning the articles 1 - 11 of the Preliminary draft. This text is accompanied with numerous […hooks] and *** which translate the level of disagreement.
The working group on articles 12 - 18 (promotion of international cooperation) introduced a text in which initial proposals were considerably weakened.
Original proposals aimed at incorporating a regime favouring the access of cultural industries of developing countries in the markets of developed countries. They incorporated the notion of vulnerability intended to allow safeguard measures.
These elements did not disappear but were considerably weakened by interpreting these measures as facultative and not as rights and strict obligations.
The creation of a Fund for cultural diversity is envisaged only as funded by voluntary contributions. So the cooperation dimension has been weakened when it was conceived to counterbalance the protection side. At the plenary session, the states of the South did not express observations on this peculiar weakening of the text, except for Jamaïque which voiced a vibrating advocacy in favour of the least developed countries, and for Yemen that proposed a clause on the Fund for cultural diversity.
Concerning the notion of protection of cultural diversity, a transversal element of the whole Convention, US and their allies (Japan, New Zealand, Australia and supporting India) tried to weaken the contents of the text by leading other states parties to justify themselves on notions such as "protection ", " goods and services ", "vulnerability ". This is reflected int the paper submitted by the Draft Committee at the end of session.
Concerning the definition of protection, US introduced plenary session a proposal excluding that the protection of cultural diversity could be invoked about issues concerning trade, investments and intellectual ownership : this is crystal clear !
On the whole, the promoters of the UNESCO process (France, Canada) appeared on defensive. The same applies for the EU that spoke through the representative of Luxembourg (acting EU presidency) , that gave the strange impression as if the EU was not represented as such.
The debate of the article 19 was the occasion of a curious incident. A majority supported Clause A (this Treaty would prevail over any other treaty that could pose a serious threat to or attack on cultural diversity).
EU declared - without justification - that she could support neither clause A nor a fortiori clause B. But she was unabled to offer a solution when asked by the president what was her proposal. This behaviour reflects an unsufficient preparation of the EU and affects its credibility gravely, notably with the countries that support clause A. At the end of session, the EU made a new proposal on article 19 (addendum of article 13 - clause of "watch " of international agreements and article 19 - clause of "neutrality " of treaties between them).
On the basis of the different elements of text, the intergovernmental Committee of experts authorized the President of the plenary Assembly, in cooperation with the president of the Draft Committee, the Rapporteur and the secretariat, to prepare a consolidated Draft to be submitted to member States at the beginning of March and then to be introduced to the Executive Council of UNESCO in April.
The consolidated Draft should incorporate the results of the Draft Committee and of the working group on international cooperation. The rest of the text should contain hooks and marks in order to reflect the different feelings expressed during the plenary session. As of March 23rd, 2005, the mentioned text had not been not introduced.
A third session of the Committee of intergovernmental experts should meet in May, to finish writing the Draft Convention in order to submit it to the General Assembly of UNESCO of October, 2005.
A short interim conclusion :
Every country could put its cards on the table and the game is therefore unfolded while it remains impossible to predict how will turn future negociations. However, US is less isolated than this was said. On the other side, the promoters of this convention (France, Canada) appeared less comfortable.
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