Jurists’ Network Roundtable Focuses on Impact of References to UNESCO Convention in Other International Forums

In opening the second meeting of the International network of lawyers for the diversity of cultural expressions (RIJDEC), Professor Ivan Bernier emphasized that references to the UNESCO Convention on the Diversity of Cultural Expressions in other national and international forums will be an essential element of its life as a legal instrument.
For this reason, the RIJDEC decided to concentrate on this theme at a roundtable held December 5, 2009 in Paris on the eve of the meeting of the Intergovernmental Committee of the Convention.

Experts were invited to analyze two recent decisions by international legal bodies that make reference to the Convention: one handed down by the Court of Justice of the European Communities (CJEC); the other by the dispute resolution body of the World Trade Organization (WTO).

The first decision, namely In the Matter of Unión de televisiones comerciales asociadas (UTECA) (C-222/07, 2009), was presented by Gianpaolo Scacco from the Directorate General Information Society and Media of the European Commission.
In order to justify the fact that the objective of promotion of a language need not necessarily be accompanied by other cultural criteria in order to legitimize a restriction to the fundamental liberty of the internal market of the European Community, the judge relied on the UNESCO Convention to demonstrate the intrinsic link between language and culture. Specifically, he referred to the 14th paragraph of the preamble which states that “linguistic diversity is a fundamental element of cultural diversity”.
According to the experts at the RIJDEC roundtable, this reference to the Convention in a decision of the Court, even if only to its preamble, is of considerable significance.

According to Jean-Christophe Barbato, Senior Lecturer in Public Law at the Université de Rouen and at the IEP of Paris, this reference has symbolic usefulness, since the European Union judge thereby underscores the importance he accords the Convention, demonstrating that the European Union’s legal framework is taking the UNESCO Convention into account in its decisions.
According to Hélène Ruiz Fabri, Professor in Public Law at the Université de Paris 1 Panthéon-Sorbonne, this external reference (in international law) reinforces the positive legal influence of the Convention. The European Community ratified the Convention and its various bodies are taking this fact into account in their deliberations.
The second decision analyzed was that of the panel of the WTO with respect to the dispute between the United States and China with respect to publications and audiovisual products.

It is important to note that, at the time of the meeting of the RIJDEC, the appellate body of the WTO had not yet published its report dated December 21, 2009, in which it upheld most of the findings of the panel.

In this matter, the United States was challenging regulations in China with respect to trading rights and distribution services for certain publications and audiovisual entertainment products. In its arguments, China explained that its intent was to preserve public morality and it defended the unique nature of the cultural goods and services by citing the 2001 Universal Declaration of UNESCO on Cultural Diversity and the 2005 Convention on the Diversity of Cultural Expressions.

The WTO panel, in its report handed down on August 12, 2009, accepted the linkage between public morality and cultural property and referred to the UNESCO Declaration on Cultural Diversity.

In her comments, Professor Hélène Ruiz Fabri considered the possibility that bridges between WTO and the Convention could be developed through the concept of public morality.

This avenue could be explored, however with some precautions, since the concept of “public morality” still has negative connotations, particularly as it is applied by China as justification with control of content and censorship.

However, according to Professor Ruiz Fabri, the meaning of the notion of “public morality” could evolve and include concerns with respect to cultural diversity if, internationally, certain limits are recognized, for instance the duty not to impinge on human rights. Such an approach would be consistent with Principle 1 of the 2005 UNESCO Convention.

In brief, despite the difficulties associated with the concept of public morality, the decision handed down by the WTO in the matter of United States – China with respect to publications and audiovisual products demonstrates that the door is not closed consideration of the Convention in deliberations by bodies of the WTO.

Other avenues for introducing the Convention’s vision into the WTO’s legal decisions were also explored. One considered was Article 31.3(c) of the Vienna Convention on the Law of Treaties which enables a judge to take into account “any relevant rules of international law applicable in relations between the parties”.

Another point of entry could be sustainable development, which is considered a fundamental principle in the Treaty establishing the WTO—this is the framework treaty establishing the WTO as an institution and to which are appended the other trade agreements with respect to goods, services, intellectual property, etc.

Sustainable development as an avenue for introducing the Convention’s approach to cultural goods and services holds promise because it is both a central principle of the WTO itself, as well as a key concept of the 2005 Convention, as reflected in its Article 13.

The RIJDEC roundtable, which brought together over 20 participants, came to a close with proposals for upcoming themes that could be analyzed in depth by the Network. Possible topics included approaches to developing eventual operational guidelines for implementing Article 21 of the Convention, as well as the cultural cooperation protocol model recently introduced by the European Union as an appendix to its trade agreements.

While this meeting of the jurists’ network focused on two recent decisions of international tribunals, it is important to emphasize that references to the UNESCO Convention have been made a number of other legal and political contexts. For this reason, RIJDEC announced it has created an on-line catalog of such references, consisting of several , announced the posting online of a list of references to the Convention consisting of political statements by States, as well as legislative and regulatory measures taken by governments that are Parties to the Convention. The RIJDEC will rely on the participation of its members other interested parties to furnish information for this databank.

The network’s coordinators also announced an on-line forum through which members and civil society, notably from the field of culture, can pose questions to the RIJDEC experts. The questions submitted must be of a legal nature and relate to the interpretation, construction or enforcement of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions. Answers will then be provided to the individual or organization originally asking the question, and may also be published on the RIJDEC site and distributed to RIJDEC members. This form is available in French, in English or in Spanish by clicking here.