Report by Garry Neil (INCD) on final round of UNESCO negotiations, 25 May - 5 June 2005

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We are only half way through the third and final meeting of the Intergovernmental Committee of Experts which is considering the terms of a Convention on cultural diversity. However, the rhythm of the meeting is well established and it is now possible to contemplate the broad parameters of the final outcome, with only a couple of elements remaining under consideration. The meeting may conclude ahead of schedule [...]

Convention on the protection and promotion of the diversity of cultural expressions

Intergovernmental Committee of Experts

UNESCO, Paris

25 May - 5 June 2005

Report from Garry Neil,

INCD Executive Director

31 May 2005

We are only half way through the third and final meeting of the Intergovernmental Committee of Experts which is considering the terms of a Convention on cultural diversity. However, the rhythm of the meeting is well established and it is now possible to contemplate the broad parameters of the final outcome, with only a couple of elements remaining under consideration. The meeting may conclude ahead of schedule.

When it began, the meeting adopted as its starting point the Chairperson's draft, now referred to as the Cape Town text. In the past week, there has been pressure on this text from different perspectives.

The United States, supported on some occasions by Japan, Australia, Mexico and Korea, attempted to weaken the text by removing references to "goods and services", the word "protect," "cultural industries" and other elements that deal with the commercial trade. These amendments are being defeated through votes in the plenary session and the United States has formally registered opposition to these decisions in several cases. Japan has signaled that it may be unable to ratify the Convention given the agreed treatment of these issues in one clause.

All elements of the previous drafts that dealt with intellectual property rights and piracy were removed from the substantive clauses of the Convention. The only reference to IP is now in the preamble. Several countries and regions, including the African group and Mexico attempted to reintroduce some of these elements. With the exception of an additional preamble provision on the importance of the protection of indigenous knowledge, these have been defeated.

Some pressure came from sources that seemed to misunderstand the purpose of the Convention. Some of these have been rejected, some have been accepted. For example, the Principle of Access in Article 2.8, was amended at the urging of some supporters to become the principle of "equitable access", thus limiting the nature of the objective, rather than expanding it.

Finally, a few positive amendments have been agreed, including

* recognition of the right of States to introduce policies that promote diversity in the media, including through public service broadcasting

* an amendment to Article 7.1(b) that Parties "shall endeavour to" create an environment in which individuals and groups have access to a diversity of cultural expressions from their own territory and from other countries

* major changes to the definitions that simplify them and make them more precise, and

* a stronger Article 11 which acknowledges the fundamental role played by civil society in protecting and promoting cultural diversity.

At the session ended today, the key elements remaining include

* the provisions of Article 20, 21 and others dealing with the relationship of this Convention to other treaties

* Article 16, which currently provides an obligation on States to provide preferential treatment for artists and cultural goods and services from developing countries has been challenged by several countries, and

* Article 18 where the African group has put forward a proposal to make contributions to the proposed Cultural Diversity Fund mandatory, with a right for nations to take a reservation against this provision on ratification.

The nature of the dispute settlement system also remains to be considered, however, it is unlikely to be any stronger than the non-binding mediation/arbitration proposed in the Cape Town text.

Preliminary Analysis

I believe the Convention falls short of the objectives adopted by the INCD.

While it will confirm the sovereign right of States to implement cultural policies, it will not balance this right with significant concrete obligations. The only limits on the right are the (very significant) need to respect human rights and fundamental freedoms and to respect the principle of "openness and balance." The scope of the Convention is limited to policies that have a direct effect on cultural expressions, rather than incorporating those that might have an indirect effect, even if this is intended. The clauses on international cooperation, with the exception of the disputed Article 16, remain as obligations that States "shall endeavour to;" in other words, States have only to try to do the things outlined. Similarly, States will not even commit unequivocally to take action to protect a form of cultural expression that is at risk of extinction in its territory. Finally, there are no obligations to support domestic artists and creators.

In a previous analysis of the Convention, I observed the following:

"If it continues, this erosion of 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."

Several times, the Chairman stated that, "it is not appropriate to impose obligations on States in a declaratory instrument." The Convention is indeed in danger of achieving this outcome, rather than the legally binding instrument agreed to by the last General Council meeting.

On balance, the Convention would seem to be a rather weak shield against continuing pressure in the multilateral and bilateral trade negotiations to eliminate or amend policies and measures which promote a diversity of cultural choices.

Accordingly, it is now time for the cultural diversity movement to step back and consider whether the Convention has value as a political tool. While it has not achieved the outcome we had hoped for, is there sufficient benefit in confirming the right of States to implement cultural policies to justify organizing a campaign to have it approved and ratified? Will the Convention be a useful organizing tool in the ongoing work? Can it become a rallying point for civil society groups and governments that remain concerned about how the trade and investment agreements are being used to stifle cultural policies and local artists and cultural producers?

I will provide a more thorough analysis when the meeting concludes and look forward to our discussions of this critical issue in the coming months.

Albanela Pérez-Suárez

Coordinator/Coordonnatrice

International Network for Cultural Diversity / Réseau international pour la diversité culturelle

804-130 rue Albert Street, Ottawa, Ontario, Canada

K1P 5G4

Tel./Tél.: (613)238.3561 ext.17

Fax/tlc.:(613)238.4849

albanela@mediatrademonitor.org

www.incd.net