UNESCO Convention Implementation: Taking Stock After Two Sessions of the Intergovernmental Committee
The conclusion of the first extraordinary session of the Intergovernmental Committee (IGC) for the UNESCO Convention on the protection and promotion of the diversity of cultural expressions in Paris on June 27 marks the mid-way point of the first two-year phase for implementing the Convention.
With the second Conference of Parties for the Convention less than one year away—it is set to take place in June of 2009—now is an appropriate time to take stock of the progress made to date, and issues still to be dealt with in the two remaining sessions of the Committee (an ordinary session scheduled for the week of December 8, and an extraordinary session expected to take place no later than March 2009).
After two sessions, the Intergovernmental Committee has made significant strides in elaborating operational guidelines for the two articles that are at the very heart of the Convention—Articles 7 (measures to promote cultural expressions) and 8 (measures to protect cultural expressions).
It has also made important headway in terms of developing operational approaches to several elements relating to the key theme of international cooperation, including the International Fund for Cultural Diversity. And it has developed operational guidelines for engaging civil society in the implementation of the Convention, including establishing a definition of civil society organizations within the context of the Convention.
As a result, although further progress on a number of articles will be needed at the IGC’s next sessions, it now looks quite likely that the Committee will be in a position to submit proposed operational guidelines for these articles for review and adoption by the June 2009 Conference of Parties, along with guidelines for several other articles, including: 11 (participation of civil society in implementation), 12 (promotion of international cooperation), 13 (integration of culture in sustainable development), 14 (cooperation for development), 15 (collaborative arrangements), 17 (international cooperation in situations of serious threat to cultural expressions), and possibly 16 (preferential treatment for developing countries).
However, a growing question is whether any work will be initiated in the IGC’s remaining two sessions with respect to the fundamental question of articulating the Convention’s relationship to other international agreements, notably by developing operational guidelines for Article 21.
If this issue does not make its way onto the agenda of the ordinary session in December, the consequence will be that operational guidelines for Article 21 will slip to the next phase of implementation leading up to the third Conference of Parties in 2011—almost three years from now.
We return to the potential implications of this outcome at the end of this article, but first, a brief overview of the results of the June session (note that specific outcomes relating to the role of civil society follow in a separate article).
Protection, Promotion of Cultural Expressions
The IGC adopted operational guidelines for Article 7 (measures to promote cultural expressions) Article 8 (measures to protect cultural expressions in special situations where cultural expressions are at risk of extinction, under serious threat, or otherwise in need of urgent safeguarding) and 17 (cooperation among Parties to deal with situations referred to in Article 8, in particular when faced by developing countries).
The guidelines ultimately adopted by the Committee were significantly revised from the drafts prepared by the Convention Secretariat. With respect to Article 7, the net effect was to remove language that would have introduced a somewhat more prescriptive expectation on States to take action in terms of policies and other measures to promote the diversity of cultural expressions. Beyond affirming the sovereign right of States to apply policies, the Convention itself leaves a largely free hand to States to determine what policies and measures it considers necessary. Amendments proposed by the Francophone group not only sought to make the guidelines less prescriptive, but to provide a more general framework better able to accommodate technological changes, while also fostering better information-sharing among Parties.
The debate with respect to Article 8’s operational guidelines clarified that only a States Party could determine the existence of special situations where cultural expressions on its territory are at risk and what action is appropriate—and that the State may do so without prior consultation with the Intergovernmental Committee. The IGC’s role in this regard is limited to making recommendations. At the same time, the session’s Rapporteur, Antonio Ricarte of Brazil’s permanent delegation, noted that many delegations “acknowledged the central role of reporting in allowing the Committee to offer support and recommendation to the Parties”.
International Cooperation: Significant Progress, Major Work Still Ahead
Building on work initiated at its inaugural session in Ottawa last December, the IGC adopted proposed operational guidelines in June for Article 15 (collaborative arrangements), which focus on defining the concept of partnerships for international cooperation, and modalities for pursuing these.
Other developments:
1. On Article 16 (preferential treatment for artists/creators and cultural goods and services from developing countries), the IGC also took note of the interim report presented by its Chair, Ambassador Gilbert Laurin of Canada, on the selection of experts and the terms of reference for the work requested by the Committee at its inaugural meeting last December on this theme. The Committee also asked the Secretariat to organize a working session at UNESCO headquarters between the experts and the coordinator prior to completion of the reports by the six experts appointed to carry out this work.
2. On Article 13, States were invited to submit written comments on the question of how to most effectively integrate culture into strategies for sustainable development to the Convention Secretariat by July 31. These comments will then inform the working document on this article that will be prepared by the Secretariat for discussion at the IGC’s December session.
3. With respect to Article 18 (International Fund for Cultural Diversity), the Committee reviewed the interim report on the use of the resources of the Fund, which summarized the initial discussion on this question that took place in Ottawa, as well as the written contributions subsequently submitted to the Secretariat on behalf of 50 States Parties to the Convention. The report highlighted points of agreements as well as areas of divergence, and the Chair focused the June discussion on resolving as much as possible points of divergence. With the objective of adopting operational guidelines for the Fund at its next meeting in December, the Committee asked the Secretariat to prepare a draft text, with options covering areas where disagreements still exist. By way of approach, the Rapporteur noted that the Committee agreed that the forthcoming guidelines “should be less prescriptive and more general” and that these guidelines should be subject to “an appraisal and evaluation” after a three-year pilot phase. The committee also asked the Secretariat, “using extra-budgetary funding where available, to hold informal consultations with Parties, experts, enterprises and donors,” with a view to identifying potential sources of financing for the Fund.” It also appealed to States and organizations with expertise in the field of fund-raising to provide the Secretariat with assistance in increasing the base of the Fund.
Next Steps
On June 27, the final day of the Committee’s four-day extraordinary session, UNESCO Assistant Director-General, Culture, Françoise Rivière, noted that the following articles would be on the agenda for the Committee’s second ordinary session starting December 8:
1. Article 13 (integration of culture in sustainable development strategies);
2. Article 14 (cooperation for development);
3. Article 16 (presentation of the reports prepared by experts on preferential treatment);
4. Article 18 (the International Fund for Cultural Diversity—use of its resources as well as avenues for increasing its base beyond the voluntary contributions of States Parties).
In order to ensure that a maximum of operational directives were completed and translated into UNESCO’s six official languages in time for the second Conference of Parties in June of 2009, Ms. Rivière emphasized that the second extraordinary session would need to be held quite early in 2009.
It is not clear at this point whether the issue of developing operational guidelines setting out avenues for States Parties to work in coordinated fashion to promote the objectives of the Convention in other international forums—i.e. Article 21—will make its way onto the agenda for the December session.
The International Federation of Coalitions for Cultural Diversity (IFCCD) considers it fundamental that Article 21 be made operational on a priority basis. Promoting the Convention’s objectives and principles in other international forums will be key to realizing its full legal and political potential, in particular its dimension as a counterweight in international law to the pressure on countries to renounce or sharply limit their right to apply cultural policies by making liberalization commitments on culture in trade negotiations.
The IFCCD also believes there is a case to be made for developing specific operational guidelines for Article 20 (Relationship to other treaties: mutual supportiveness, complementarity and non-subordination). While Article 21 can be viewed as the vehicle through which the provisions of Article 20.1 b) can be made operational, the Federation prefers to see both articles situated directly within the Convention’s operational framework. Given that Article 20 is the reference point for any discussion of how the UNESCO Convention relates to other international agreements, its provisions should be taken into account in any situations where interpretation is called for when the Convention’s scope overlaps with that of another agreement, such as a trade agreement, to which a given State is also a signatory.
These articles are essential vehicles for ensuring that the full legal and political weight of the Convention as an international instrument for upholding the right of countries to apply cultural policies is realized. A fundamental dimension of this entails countries maintaining coherence in their actions—crucially, by not renouncing in trade negotiations the right to apply cultural policies that they have so emphatically affirmed in the Convention.
With the WTO Doha Round negotiations stalemated, and new Free Trade Agreement bilaterals unlikely to be launched by the United States until the dust settles after the U.S. Presidential elections in November, there is a window of opportunity to develop channels for States to coordinate and consolidate an ongoing consensus on refraining from liberalization agreements in such negotiations.
It should also be noted that many, many States are now pursuing a growing number of bilateral and regional negotiations in light of the growing scepticism that the Doha Round will ultimately produce a deal. The European Union has already adopted its own approach: inserting a cultural cooperation protocol as an annex to new regional and bilateral trade agreements it negotiates. The protocol is the subject of a separate article in this bulletin.
A final note: one theory has it that the Committee has opted to defer discussions around Articles 20 and 21 until a greater number of States have ratified. Given the sensitivities with respect to how the Convention will intersect with trade agreements, it is believed some have been concerned that initiating this discussion too early might deter some States from ratifying the Convention. With 90 States now having ratified, however, and a recent renewal of ratification momentum, such concerns should recede and not impede addressing a critical dimension of the Convention sooner rather than later.
IFCCD Representation at the IGC
The International Federation of Coalitions for Cultural Diversity had observer status for the Paris session, and was represented by its President, Rasmané Ouedraogo, Europe Vice-President Beat Santschi, General Secretary Jim McKee, Geraldine Loulergue, Coordinator of the French Coalition, and Michaela Kozaric, also of France’s Coalition.
