Antonios Vlassis & Lilian Richieri Hanania^[1]

 

Background

Since the 1980s, increasing financial globalization, economic integration as well as liberalization of trade exchanges and investment have raised major concerns for several national governments and cultural organizations regarding the effects of such new context on cultural diversity. Given the twofold (economic and cultural) nature of cultural goods and services, which encompass both symbolic and material production, their treatment within international trade agreements became the subject of growing political interest.

The importance of establishing international norms on cultural goods and services has risen since the early 1990s, based on the advent of the so-called “cultural exception” (exception culturelle) in international and regional economic integration, as well as UN debates on an alternative conception of development, going beyond its economic aspects and having, among others, a cultural dimension. Indeed, a coalition of actors, driven by France and Canada, advocated the adoption of a “cultural exception” allowing to exclude cultural goods and services from the agenda of trade negotiations, such as those which led to the General Agreement on Trade in Services (GATS) within the World Trade Organization (WTO), the Multilateral Agreement on Investment (MAI) within the Organization for Economic Cooperation and Development (OECD) in 1993, the free trade agreement (FTA) between the United States (USA) and Canada in 1989 and the North American Free Trade Agreement (NAFTA) between the USA, Canada and Mexico in 1994. By the late 1990s, however, the term “cultural exception” was gradually replaced with the more inclusive and less defensive term “cultural diversity”, and discussions led to the decision to pursue a counterbalance to trade agreements outside international trade frameworks and, eventually, within UNESCO.

In parallel, UNESCO had been exploring how to foster the links between culture and development, seeking to become the main international arena for the expression of the concept of cultural development. The organization had been promoting a change from a strictly economic conception of development to an enlarged approach, which integrated other dimensions, such as culture. Several UNESCO meetings and normative tools had indeed demonstrated efforts to disseminate the concept of cul­tural development at the international level and to raise awareness by the international community of the relevance of cultural policies. The 1982 World Conference on cultural policies (MONDIACULT), the World Decade for Cultural Development (1988–1997), the report “Our Creative Diversity” by the World Commission on Culture and Development (1996), and the International Conference on Cultural Policies for Development in Stockholm (1998) offer relevant examples of such efforts.

By the end of the 1990s, an alliance of actors including multilateral international and regional organizations (Council of Europe, International Organization of Francophonie, Organization of American States), several national governments (France, Canada, China, South Africa, Brazil) and non-governmental organizations (National Coalitions for Cultural Diversity, International Network for Cultural Diversity) was mobilized in favour of cultural diversity and the establishment of a new international binding legal instrument within UNESCO (Vlassis 2015: 107-230). The first step was taken with the adoption of the 2001 UNESCO Universal Declaration on Cultural Diversity. Exceptionally fast was then the decision to negotiate a new UNESCO convention, complementary to other UNESCO treaties dealing with cultural diversity. Initially entitled “Convention on the Protection and Promotion of the Diversity of Cultural Contents and Artistic Expressions”, the UNESCO “Convention on the Protection and Promotion of the Diversity of Cultural Expressions” (CDEC) was negotiated between 2003 and 2005. As Jean Musitelli explains (Musitelli 2005: 515), the “diversity of cultural expressions” was built on the impetus around both the concepts of “cultural exception” from trade negotiations and “creative diversity”, conceptualized by UNESCO.

Following hard negotiations on several issues, such as the interface between trade and culture and the relationship between the convention and other international treaties, the precise scope of such new legal instrument, as well as the dispute settlement mechanism to be foreseen, the CDCE was adopted on October 20, 2005. It entered into force extraordinarily fast, in March 2007.

Coverage

The CDCE is the main multilateral law instrument addressing global and multilevel cultural governance (Aylett 2010). As of August 2016, the CDCE had received the support of 144 Parties, including France, Germany, the United Kingdom, Canada, Brazil, Mexico, Argentina, India, China, Australia and South Korea and the European Union (EU), while the United States of America, Russia, Japan and Pakistan, as well as several Middle Eastern countries (Iran, Israel, Saudi Arabia) have not ratified the CDCE.

The object of the CDCE is particular vis-à-vis other UNESCO legal texts and does not refer to cultural diversity in the broadest sense of the term. The terminology “diversity of cultural expressions” may, nevertheless, be confusing, considering the use of “cultural expressions” in various other contexts and treaties, within and outside UNESCO. In fact, during negotiations, such term was selected as a shorter replacement for “cultural contents and artistic expressions” and refers, according to article 4.3 of the CDCE, to “expressions that result from the creativity of individuals, groups and societies, and that have cultural content”. A systemic interpretation of the CDCE and of UNESCO documents preceding its negotiation provide better clarity on its object and purpose: it addresses a specific aspect of cultural diversity, i.e. the diversity in the offer and the exchanges of cultural goods, services and activities created, produced and distributed by cultural industries, such as literature, music, photos, films, dance, theatre, etc., “whatever the means and technologies used” (article 4.1 CDCE). The CDCE is indeed technologically neutral and may be adequately employed in the current context of rapid technological progress.

The CDCE addresses two main facets of action in favour of a diversified offer of cultural goods and services. The first one is the recognition of the specificity of those goods and services and, consequently, of the legitimacy of cultural policies and the need for a specific legal treatment for such goods and services, including in international trade agreements. The CDCE is very flexible regarding the types of measures and policies to be adopted, as well as the sectors in which Parties may decide to intervene in order to protect and promote the diversity of cultural expressions when implementing the convention. It contains, however, no legal obligation for the Parties to adopt “cultural exceptions” in their trade agreements – the CDCE provides rather political support in that sense (Graber 2006; Richieri Hanania 2009 and 2014). Moreover, it cannot modify trade agreements already concluded by its Parties. On this matter, article 20 of the CDCE on the relationship with other international agreements (including trade-related treaties) contains two para­graphs, which at a first glance seem to be irreconcilable. They reflect both the willingness to exclude subordination of the CDCE to other treaties and the desire to not undermine other inter­national commitments previously adopted, including in the trade sector. Through this provision, the CDCE has therefore expressly established a relationship based on equality vis-à-vis other treaties (Richieri Hanania 2009: 327–329).

The second aspect addressed by the CDCE, which is also fundamental towards balanced exchanges of cultural goods and services, is cultural cooperation and, in particular, cultural cooperation in favour of development. The CDCE deals directly with the link between culture and development and reiterates the role of culture in sustainable development (article 13 CDCE), ultimately requiring greater coherence and coordination between policies and actions adopted in different fields, such as economic, social, environmental, cultural and development policies (Richieri Hanania 2014: 297-301 and Richieri Hanania 2015). In order to strengthen international cultural cooperation, the CDCE proposes several tools, such as information exchange among the Parties (articles 9 and 19 CDCE), collaborative arrangements (article 15 CDCE), preferential treatment for developing countries (article 16 CDCE), as well as an International Fund for Cultural Diversity, a multi-donor voluntary Fund established under its article 18. Between 2010 and 2015, the Fund has supported 78 projects in 48 developing countries, with contributions accounting for an amount of US$7.6 million. Following the strong involvement of civil society during the CDCE negotiations, its article 11 acknowledges the essential role of civil society in its implementation.

Challenges

Despite its symbolic, political and legal contribution to the “trade and culture” debate and its progressive and significant practical implementation (Richieri Hanania 2014), the CDCE contains few binding obligations on its Parties and remains a hard law instrument with a soft normative content (Vlassis 2011: 495). It provides an important leeway on issues such as cultural cooperation, appropriate cultural policies for the diversity of cultural expressions and the “trade and culture” interface (Neuwirth 2012), but its implementation still remains strongly dependent on each of its Parties’ political will (Richieri Hanania 2014: 297; Vlassis 2015: 257-275). The CDCE implementation is also challenged today by the difficulties encountered by most Parties in completely understanding and appropriately addressing challenges brought by new technologies in the creative economy. In order to guide the implementation and promotion of the CDCE provisions by different stakeholders within the digital environment, new operational guidelines are presently under discussion at UNESCO.

References

Aylett, Holly (2010) “An International Instrument for International Cultural Policy: the Challenge of UNESCO’s Convention on the Protection and Promotion of Diversity of Cultural Expressions 2005”. International Journal of Cultural Studies, 13(4), p. 355-373.

Graber, Christoph Beat (2006) “The New UNESCO Convention on Cultural Diversity: A Counterbalance to the WTO?”. Journal of International Economic Law, 9(3), p. 553-574.

Musitelli, Jean (2005) “L’invention de la diversité culturelle”. Annuaire français de droit international, 51, p. 512-523.

Neuwirth, Rostam (2012) “The Convention on the Diversity of Cultural Expressions: A Critical Analysis of the Provisions”, in Kono, Toshiyuki and Van Uytsel, Steven (ed.) The UNESCO Convention on the Diversity of Cultural Expressions: A Tale of Fragmentation in International Law, Instersentia, Helsinki, p. 43-70.

Richieri Hanania, Lilian (2009) Diversité culturelle et droit international du commerce, CERIC, Paris, La Documentation française, 480 p.

Richieri Hanania, Lilian (ed.) (2014) Cultural Diversity in International Law: The Effectiveness of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, London/New York, Routledge, 320 p.

Richieri Hanania, Lilian (2015) “The UNESCO Convention on the Diversity of Cultural Expressions as a Coordination Framework to promote Regulatory Coherence in the Creative Economy”. The International Journal of Cultural Policy, DOI: 10.1080/10286632.2015.1025068, p. 1-20.

Schorlemer, Sabine von and Stoll, Peter-Tobias (eds.) (2012) The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions – Explanatory Notes, Berlin Heidelberg, Springer-Verlag, 778 p.

UNESCO (2005) Convention on the Protection and Promotion of the Diversity of Cultural Expressions, Paris, UNESCO, http://unesdoc.unesco.org/images/0014/001429/142919e.pdf.

Vlassis, Antonios (2011) “La mise en œuvre de la Convention sur la diversité des expressions culturelles: portée et enjeux pour l’interface ‘commerce-culture’. Études internationales, 42(4), p. 493-510.

Vlassis, Antonios (2015) Gouvernance mondiale et culture : de l’exception à la diversité, Liège, Presses universitaires de Liège, 325 p.

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