December Convention Intergovernmental Committee Meeting: Preferential Treatment Discussion Triggers Debate on 2005 Convention’s Relationship to WTO

The relationship of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions to trade agreements may not have been officially on the agenda for the December meeting of the Intergovernmental Committee, but it nevertheless surfaced as a major source of discussion before the meeting had come to a close.

The trigger for the discussion was a debate on Article 16--which commits developed countries to take actions to accord preferential treatment to artists and cultural professionals from the developing world, and to similarly act to improve the circulation of cultural goods and services coming from developing countries.

The question of how to make good on this commitment inevitably raises the question whether the approaches to be taken within the still-to-be-drafted operational guidelines for Article 16 will create overlap with the World Trade Organization (WTO). The initial debate on this theme--enriched by six experts’ reports on the issue--revealed that at this stage States on the Intergovernmental Committee have quite different perspective on how best to deal with this question.

With the country best-known for voting against the Convention--the United States--monitoring the debate with great interest, Brazil emerged as the State most intent on initiating a discussion on the Convention’s relationship to the WTO sooner rather than later. During the three-hour debate on Article 16, Brazil repeatedly returned to the position that there were clear risks associated with not initiating this reflection sooner rather than later --that failing to take the initiative increased the danger that decisions based purely on the commercial dimension of culture would be taken at the WTO that would create problems for the effective implementation of the Convention.

Brazil went so far as to offer to sponsor a seminar at the WTO on the question--prompting an arch riposte by Pierre Defraigne, Executive Director of the Madariaga-College of Europe Foundation, and one of two expert coordinators, along with Vera Helena Thorstensen, who presented an overview of the experts’ reports to the Committee: "You should get the WTO experts to come to Paris. It would do them some good." Mr. Defraigne also stressed the importance of States Parties to the Convention fully developing their perspective on this relationship before initiating a discussion with the WTO.

India, meanwhile, proved most reticent on the question, emphasizing in a number of statements that the rationale for initiating the Convention at UNESCO had been to approach the challenges of protecting and promoting the diversity of cultural expressions from a fundamentally cultural perspective.

Other Committee members indicated that it was premature to initiate a discussion on this question. This was the position taken by the Francophone group, as expressed by St. Lucia. The European Commission also intervened in the same vein, stressing that it was important to maintain a clear distinction between making Article 16 operational, and the still-to-come work on addressing Articles 20 (relationship of the Convention to other international instruments) and 21 (promoting the objectives of the Convention in other international forums).

Canada, in its intervention, emphasized the importance of establishing a framework and terminology for the operational guidelines of Article 16 derived from the language of the Convention itself; it also proposed that a reference to Article 20 be incorporated “so as to remind Parties that it is their responsibility to ensure that the measures they take on this question in the context of commitments in other treaties are coherent” with Article 16.

The debate was unresolved. At the conclusion of the exchange, the Committee agreed that States Parties to the Convention should be invited to provide input to the matter of making Article 16 operational--and it is important to emphasize that much of this will focus on concrete actions that can be taken to facilitate the movement of artists and cultural professionals and cultural goods and services from developing countries.

The timeline is tight: the Convention Secretariat has committed to distribute the questionnaire by December 19, requesting written comments by January 30. Informed by these contributions, and the December debate, the Secretariat’s challenge will be to prepare draft operational guidelines for examination during the final meeting of the Committee that will take place March 23-25 before next June's second Conference of Parties to the Convention.

The United States’ interest in this debate was demonstrated by the rare presence of its Ambassador Louise Oliver. Mrs Oliver, a nominee of the Bush administration, asked that Parties that have not ratified the Convention be able to provide written comments on Article 16—insisting on this point by noting that all Parties contribute to UNESCO’s operating budget (an unsubtle way of underscoring the U.S. dues are a major portion of the agency’s budget). The request was considered, but the Committee decided to limit States interventions to those that have ratified.

One win for civil society is that the Committee agreed to invite non-governmental organizations to respond to the Article 16 questionnaire, which is appropriate given that many organizations in the cultural sector have detailed knowledge of the problems many artists and cultural practitioners face when navigating the challenge of obtaining visas and work permits.

While the Article 16 debate was conceived as a preliminary discussion, by contrast the Committee was intent on completing operational guidelines for the International Fund for Cultural Diversity and succeeded after lengthy debate. Civil society organizations will be able to submit projects for the Fund, provided they secure the support of the countries in which the projects are being carried out. The criteria for the Fund were drafted in such a way as to enable developed countries to route money from their international development agencies into the Fund, which is hoped will significantly increase its base of contributions. To date, barely US$1million has been paid into its account.

The Committee also debated operational guidelines for several other articles, and succeeded in adopting guidelines for Article 13 (integration of culture into sustainable development) and 14 (international cooperation for development).

The meeting concluded with the election of a new Bureau to guide the proceedings of the March meeting. Vera Lacoeuilhe of St. Lucia was elected Chair. The agenda for that meeting will include:

* Draft operational guidelines for Article 16
* Examination of the documents that will be submitted to the Second Conference of Parties in June
* Discussion of alternative sources of funding to increase the base of the Fund
* Discussion of approaches to increasing the visibility and promotion of the Convention, including the possibility of developing operational guidelines on this question.