Cultural diversity
Giacomo Mazzone, Assistant to the Secretary General, EBU 

A battle worth fighting

The third meeting of intergovern-mental experts on cultural diversity completed its work in Paris on 3 June 2005, publishing a final version of the Treaty on Cultural Diversity, which will be presented for approval by the General Conference of UNESCO when it meets from 3 to 21 October 2005.

The delegations present greeted the adoption of the text with prolonged applause, and the Jamaican delegate gave a rendition of “Everything is gonna be alright” from Bob Marley’s “No woman, no cry”. Meanwhile the US delegation made a theatrical exit, following an inflammatory statement which reflected their isolation but also carried a threat. 

This was the moving conclusion of a long and difficult process, which had started way back on 2 November 2001 with the official promulgation of the UNESCO Universal Declaration on Cultural Diversity. In this document, the UN body responsible for education, culture and science announced to the world for the first time that the right to cultural diversity is one of the fundamental rights of humanity. 

The UNESCO General Conference followed up this declaration with a commitment to prepare the ground for the drafting and, eventually, the adoption of an international treaty which would officially add the right to cultural diversity to the other rights enshrined in the UN Charter, putting it on a par with the issues of biodiversity, protection of heritage, the free movement of goods and services, and so on.

Koïchiro Matsuura, director general of UNESCO, was given the task of carrying this General Conference commitment forward. Accordingly, in December 2003 he appointed a committee of independent experts tasked with drafting a preliminary version of the Treaty (submitted in July 2004), to be submitted to the 191 UNESCO member states for their approval in principle. The draft treaty would then be scrutinized in detail at three meetings of intergovernmental experts in Paris, with a view to achieving the consensus required for agreement on a definitive text.

The first meeting of experts was held from 20 to 24 September 2004, the second from 31 January to 15 February 2005, and the third and final meeting from 25 May to 4 June 2005, with an average attendance of 550 experts from 130 countries.

At the first meeting, the preliminary text was radically reviewed and amended, with some additions. The second meeting achieved a broad degree of consensus on the fundamental terms of the convention (definitions of ‘cultural diversity’, ‘protection’, ‘cultural goods and services’, and so on), and on the measures that needed to be taken and would be acceptable in international law. This meeting also swept away a number of over-ambitious notions contained in the preliminary text, such as the establishment of an obligatory fund to support cultural diversity, the setting up of a world observatory, and a permanent group of experts to monitor compliance.

It was therefore not surprising that the debate tended to polarize: on one side were Canada (the country promoting the initiative in the UNESCO context); the Europeans, with the European Commission delegation growing in strength as the negotiations progressed; and the group of 77 countries (the most active of which were Brazil and India, with China playing a key role). On the other side were the more sceptical and less enthusiastic nations: Japan, Russia and Australia, whose arguments focused on the simple acceptance or rejection of certain concepts or terms favouring cultural diversity.

Throughout the discussions, the United States never attempted to argue with the others, and did not shift in the slightest from its initial position: as far as the US was concerned, this Treaty should not see the light of day as it represented an impediment to the agreements on international trade signed under the auspices of the World Trade Organization (the GATT, already fully enforced, and the GATS, the wider application of which is currently under negotiation in Doha).
  
After listening carefully to all the delegations, and a summary of the debates of the first two sessions, the chairman of the committee of experts, former South African education minister Kade Asmal, was appointed to draft a fresh version of the Treaty, taking into account what had been said at the first two working sessions.

After a week’s work in Cape Town, in regular contact with the delegations of the countries that had been most active in the discussions (Europe, Canada, India, Brazil, Japan, China, etc.), Chairman Asmal published a synthesis, which was distributed to all the delegations in April. 

The May 2005 meeting therefore began, as in September 2004, with a full, consistent and well-written text, now far less ambitious than the original document. With a solid basis of consensus on each chapter, and a few points still to be settled, the chairman had already written compromise potential into the basic text. 

The final ten days of discussion were therefore taken up in making minor adjustments and amendments, so as to secure the agreement of countries whose starting positions were not sufficiently reflected in the final draft.
 
China managed to have the right to pluralism in the media amended to the “right to diversity in the media”; Japan introduced the concept of “cultural expression”, also deserving of protection; Brazil managed to eliminate all explicit references to intellectual property; Canada and Switzerland asked for the intro-duction of a federal clause; the European Union ensured that the Treaty could be signed not only by national governments, but also by international bodies representing them, so that it could sign in addition to its own member states, etc.

The only country systematically to refuse any compromise or negotiation on the definitive text was the United States, which was counting right up to the end on the impossibility of getting the text approved by the assembly of experts.

It was not until 2 June, the day before work was concluded, that diplomats in Washington – realizing that that there was a danger of the text being adopted – began looking for allies. But their efforts met with little success: in the final vote on 3 June, only the Israeli delegate supported the Americans. 

The countries on which the United States had brought pressure to bear the day before – which had taken part in good faith in all the negotiations, albeit trying to get the text amended until the very end – gave their overall approval to the Treaty, while expressing reservations on some of the clauses which had been adopted by a majority rather than unanimously. Thus Australia, New Zealand, Argentina and three or four other countries were able to join in the singing with the Jamaican delegate at the end of the session, as well as the applause for Chairman Asmal.

Only a few of the delegates present in Room XIII of UNESCO’s Fontenoy building, where the final text was adopted, remembered that the battle won that day had begun in April 1994 in Marrakech, when the agreements concluding the Uruguay Round were finally signed after seven and a half years of negotiations (1986–1994). It was also in Marrakech that the European Union had decided to approve the idea of a World Trade Organisation, while protecting its cultural industries and mechanisms in support of culture by not making any specific commitment to open up its market to cultural and audiovisual services. This gave rise to the so-called ‘cultural exception’ barrier, which came close to being swept away by American assaults during the Doha Round in November 2001.

The European Union was therefore in danger of finding itself in an awkward position in the new negotiations: on the one hand, at loggerheads with developing countries over its protectionist agricultural policy; on the other, in disagreement with the United States because of its refusal to open up its markets to cultural goods and services. A solution had to be found to save it from this war on two fronts.

This Treaty – if it is approved as expected in October – stands a good chance of providing an effective solution. And Pascal Lamy, the former head of the Delors cabinet who invented the term ‘cultural specificity’ (which, for lack of anything better, gave rise to the ‘cultural exception’), has been the director general of the WTO. In this capacity, he is dealing with the offspring of his own invention: no longer the dream of a handful of European countries but a Treaty which will, hopefully, be supported by a large majority of the international community.

This should make life far simpler for Mr Lamy’s successor as EU Trade Commissioner, Peter Mandelson: with the troublesome issue of culture removed from the negotiations, he will be able to concentrate at last on a far bigger and more complex problem… agriculture.

__________

GATS
Pascal Lamy, Director General, WTO 

Strategy and negociating position* 

Brussels, March 2001 

“Culture and broadcasting are strong vehicles for globalization because they reflect social behaviour and models: this is the basic political position. Yet at the same time, questions of culture and interface with other systems are also very closely linked to respect for identity, which it is feared that globalization will undermine.

“Cultural products are special, in that, on the one hand, they can be bought, sold, imported and exported and, on the other, despite everything which points to their categorization as goods and services in merchandizing, they still cannot be reduced to simple goods and services because of their values and creative content. Although certain goods and services in the traditional commercial sector may have a creative content or value, by definition cultural goods and services have a much greater proportion.

“So where do these products fit in with regard to international exchange?

“According to the humanist theory of trade, this type of exchange must promote diversity, not limit it. A completely clear mandate from the Council and the Parliament allows the EU and its Member States to protect and develop their capacity to define and implement policies contributing to cultural diversity.”

Strategy 

“Broadcasting and culture should come under negotiations on services, not goods. In the GATS negotiations and at the WTO, these two areas are discussed separately. In the area of services, in contrast to goods, each WTO member chooses the degree to which they want to open their market. With goods, this is not necessarily the case and therefore a barrier exists between the two!

“We do not wish to see culture and broadcasting left out of the WTO discussions. That is not necessary, because nothing can be imposed upon us in this type of negotiation. In fact, at this stage it would probably be dangerous because if we were to ask the WTO to ‘standardize’ the notion of culture, which would be necessary in order to place it outside the WTO’s field of activity, the organization would be adopting a prescriptive role which does not come within its remit.

“Our strategy is to uphold exceptions to the opening up of our markets for services where this is necessary for the promotion of cultural diversity.

“The five exceptions that we lodged and had approved in Marrakech enable us to protect our support mechanisms for the European film industry and our broadcasting quotas for European output. And these exceptions will be upheld.

“We will do our utmost to ensure that the areas of culture and broadcasting remain within the WTO’s services category and that this arrangement is respected. There is a serious risk that these provisions will be circumvented in the name of technological developments. Blinded by electronic wizardry we may well find that services have been transformed into goods before we even realize what has happened.

“Our negotiating position requires us to remain on the defensive to protect our position whilst also being aware of the need to go on the attack in some instances. For example, music is a more aggressive sector than cinema within the EU.

“If we look at the status of trade negotiations in the audiovisual sector, we can see that there have been two major changes over the last 10 years. First of all, the ideological struggle on the issue of cultural diversity has been won. While 10 or 15 years ago this notion was recognized only by a minority, it has now gained the approval of a majority of the world’s population. In the EU there can be no doubt about this fact, as is the case in the wider European area, the Mediterranean basin, a very large part of the Third World, India, Pakistan and Bangladesh. In some parts of Latin America too this argument is beginning to hold sway. The bet has been won.

“Secondly, technology has changed and the campaign for protection of cultural diversity needs to be re-examined in relation to technological developments. Even though the platform is very clear on the fact that we must protect cultural diversity, we do not really know how to do this in practice!

“Then there is the question of where all of this must be ‘standardized’ or ‘regulated’. This issue needs to be tackled in the same way as other areas such as culture, the environment, health, food security, basic social standards, etc.

“We have the WTO which is responsible for the liberalization of trade – an excellent objective under certain conditions. Then there is the World Health Organization which issues standards to which the WTO refers, for example the Codex Alimentarius. And finally we have the International Labour Office, producing standards to which other institutions can and must refer.”

Cultural domain?  

“There no standards whatsoever. So far there have only been proposals for non-committal ‘papers’, inconsequential documents on which everyone can agree. The complete lack of standards relating to culture at international level is an untenable situation, just as it would be in relation to the environment, health, organized crime or finance.

“This is the problem we are now facing. The need to reach agreement on an international set of guidelines in this area will undoubtedly become more pressing over the next few years and, as trade negotiators, we will have to take this into consideration.”

*  Text written when Pascal Lamy was European Commissioner for Trade

Please see the pdf document for annexes. 

pj/nc