The Convention on the Protection and Promotion of the Diversity of Cultural Expressions is an international treaty adopted in October 2005 in Paris during the 33rd session of the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO). In response to the fears that globalization would lead to an increasingly uniform global culture, it allows states to protect cultural diversity and cultural expressions by promoting and defending their own cultural industries.2005 Convention, The Preamble It also establishes international co-operation to help protect the cultural industries of developing countries, including the creation of the International Fund for Cultural Diversity. It reaffirms many of the principles of the 2001 UNESCO Universal Declaration on Cultural Diversity but, unlike that declaration, it is legally binding and requires legal ratification by member states. The convention is the first international treaty to give cultural goods a special status, having cultural as well as economic value.
The convention addresses many audiences and operates at three main levels. First, it is an international treaty governing co-operation between states. Second, it guides national and international governments in the legislation and other actions they can take to preserve cultural diversity within their states or regions. Third, it calls for action by public and civil bodies at local and national levels to support diverse cultural expressions. The convention has no enforcing body; it leaves enforcement to the member states but sets out procedures in case of disputes between them.
One hundred and forty-eight countries voted to approve the treaty, with five abstaining and the United States and Israel opposing. The agreement came into effect in March 2007 and has been ratified by 151 states, as well as by the European Union.
Background and negotiations The convention was a response to treaties and other international measures promoting trade liberalization in cultural goods, especially the actions of the World Trade Organisation (WTO). These were seen as undermining the sovereign right of states to use cultural policies to support their own cultural industries. The convention aimed to provide a legally binding international agreement that reaffirms that right. It enshrined the view that goods and services created as cultural expressions have both an economic and cultural nature and so cannot be seen purely as economic goods. The convention also defines cultural industry and interculturality2005 Convention, Article 4 Paragraph 8 and calls for international co-operation, especially to support the cultural industries of developing countries.
The impact of trade liberalization on cultural policy The concept of diversity of cultural expressions is the result of a paradigm shift in the way that culture is considered in international relations, particularly in the context of agreements aimed at liberalizing trade. It succeeds the concepts of cultural exception or cultural exemption that appeared during the 1980s. The awareness on the part of certain states of the impacts of the liberalization of economic exchanges on their cultural policies is the trigger for the emergence of the concept of cultural diversity and the need to protect the diversity of cultural expressions, particularly because of the strength of the Hollywood film market.Neuwrith, Rostam J. "La Convention de l'UNESCO et les technologies du futur: 'Un voyage au centre de l'élaboration des lois et des politiques culturelles'" in
The convention was born out of a desire to reconcile cultural diversity with increasingly liberal trade agreements. The international community was progressively lowering barriers to free trade, easing the movement of goods, services and capital between states. In several free trade agreements, states were able to establish exceptions to their commitments, either to protect specific sectors or to protect their policies such as environmental, social or culture.
The 1947 the General Agreement on Tariffs and Trade already recognized the cultural specificity of the film sector by allowing states to maintain certain types of screen quotas to ensure the broadcasting of national films. When the trade system was being reformed in the 1980s and 1990s, Canada and France asked that special treatment be given to audiovisual services in the new General Agreement on Trade in Services (GATS) then under negotiation. The United States firmly opposed this, which led to the "failure of the cultural exception", an expression that reflects the impossibility of excluding the cultural sector from the reformed multilateral trade system.
The vulnerability of state cultural policies is also apparent in some trade disputes, most notably in Canada - Certain Measures Concerning Periodicals. In that case, the panel rejected one of Canada's arguments that, because the content of Canadian and U.S. periodicals differ, the products are not similar and, therefore, may be treated differently by Canada.5.24-5.27 In the end, certain measures to protect the Canadian periodical industry were not adopted.
One topic of negotiation is whether products with cultural value be treated like any other commodity. Some states answer in the affirmative, arguing that it is necessary to adopt a legal instrument that is independent of the WTO's multilateral trade system in order to recognize the dual nature, economic and cultural, of cultural goods and services. The recognition of this dual nature is reflected in certain bilateral or regional trade agreements that include cultural exemption clauses. The first agreement to contain a cultural exemption clause was the Canada-US Free Trade Agreement of 1988.
The application of trade rules to cultural products raises a particular problem. By making commitments in economic agreements, states agree to eliminate all forms of discrimination between domestic and imported cultural products. In doing so, they are gradually relinquishing their cultural sovereignty, that is, their ability to develop cultural policies and provide support for their own cultural industries, which reflect their identity. In this sense, the very foundations of free trade make it difficult to recognize the specific nature of cultural products, which are bearers of identity, value and meaning,2005 Convention, Preamble, para 19. hence the need to incorporate cultural exception and cultural exemption clauses (cultural clauses) into economic agreements.
Although these clauses are multiplying, concern remains in cultural circles about the progressive liberalization of the cultural sector and the repeated characterization of cultural products as mere "merchandise". In fact, cultural clauses receive a mixed reception during trade negotiations. Some states consider them to be protectionist and therefore antithetical to the ideology of free trade, which favours open markets. The United States generally refuses to incorporate such clauses into the free trade agreements it negotiates.
The concept of cultural diversity allows for a more positive perspective and a more positive approach to free trade. It allows for a balance to be struck between the economic benefits of opening up economies and taking into account the specificity of cultural products.
The role of UNESCO The Convention on the Protection and Promotion of the Diversity of Cultural Expressions is one of seven UNESCO conventions that deal with the four core areas of creative diversity; cultural and natural heritage, movable cultural property, intangible cultural heritage and contemporary creativity. The others are the Universal Copyright Convention (1952, followed by a revision in 1971), the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954/1999), the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970), the Convention Concerning the Protection of World Cultural and Natural Heritage (1972), the Convention on the Protection of the Underwater Cultural Heritage (2001), and the Convention for the Safeguarding of the Intangible Cultural Heritage (2003).
Faced with the fact that the commitments made within the WTO did not allow for the recognition of the dual nature of cultural goods and services, some states decided at the end of the 1990s to move the debate to UNESCO. On the one hand, UNESCO's constitution, and particularly Articles 1 and 2, make it the appropriate international forum for this debate.UNESCO, Convention establishing a United Nations Educational, Scientific and Cultural Organization, known as the "Constitution", 1945, London, as amended by the General Conference at its 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 12th, 15th, 17th, 19th, 20th, 21st, 24th, 25th, 26th, 27th, 28th, 29th and 31st sessions, art. 1, online: http://portal.unesco.org/fr/ev.php-URL_ID=15244&URL_DO=DO_TOPIC&URL_SECTION=201.html On the other hand, the United States was not a member of this organization at the time (it rejoined UNESCO in 2003 when the negotiation of the convention was launched), which created a favourable context for the development of a multilateral instrument aimed at protecting cultural diversity.
In 1998, the Action Plan on Cultural Policies for Development drawn up at the Stockholm ConferenceIntergovernmental Conference on Cultural Policies for Development, "Action Plan on Cultural Policies for Development". in Final Report, Stockholm CLT-98/Conf.210/5, (30 March to 2 April 1998), p. 11. recommended that cultural goods and services should be treated differently from other merchandise. This action plan sets the stage for developments in cultural diversity from the early 2000s onwards.
UNESCO Universal Declaration on Cultural Diversity The UNESCO Universal Declaration on Cultural Diversity was adopted unanimously by 188 member states on 2 November 2001, in the aftermath of the September 11 attacks. It affirms "that respect for the diversity of cultures, tolerance, dialogue and cooperation, in a climate of mutual trust and understanding, are among the best guarantees of international peace and security". It represents an opportunity to "categorically reject the thesis of inescapable conflicts of cultures and civilizations".
In Article 8 of the declaration, UNESCO members affirm that "cultural goods and services [...], because they convey identity, values and meaning, should not be treated as commodities or consumer goods like any other." In Article 9, the role of cultural policies is defined as a tool to "create conditions conducive to the production and dissemination of diversified cultural goods and services".
This declaration is not legally binding. The desirability of negotiating a binding international legal instrument is set out in Annex II of the declaration. Several articles of the declaration are included in the Convention on the Protection and Promotion of the Diversity of Cultural Expressions.
Negotiations Work towards the convention began in the fall of 2003, with a decision of the UNESCO General Conference. Fifteen independent experts participated in a series of three meetings to create a preliminary draft. This draft was distributed to member states in July 2004. It formed the basis for the intergovernmental negotiations from the fall of 2004 onwards to prepare the draft convention to be presented to the General Conference in 2005.