ANCHOR CULTURAL DIVERSITY IN INTERNATIONAL LAW!

General Conference of Unesco in October 2005

By Sophie Lessing. Marburg

[This article published in: Zeit-fragen Nr.36, 9/12/2005 is translated from the German on the World Wide Web,  http://www.zeit-fragen.de.]

The 33rd Unesco General conference will take place in Paris from October 3-21, 2005. Within the United Nations, Unesco is responsible for education, training, science and culture. One main theme of the conference will be passing the “Unesco agreement on protecting and supporting the diversity of cultural expressions.” The 2/3 majority necessary to pass this convention seems assured. An international law agreement will take effect that opens a completely new area of international law, “cultural diversity.” The convention worked out in the framework of the United Nations is obviously related to the General Agreement on Trade in Services (GATS) of the World trade organization (WTO) and is a reaction to that agreement. According to GATS, cultural services are simply defined as “goods”. With continuing liberalization pressure, these services should be increasingly integrated in the worldwide free trade. Markets, power and hundreds of billions of euros or dollars a year are involved.

The World Trade organization (WTO) developed “outside” the United Nations and is only obligated to its own legal praxis. “Parallel worlds” (Christina Weiss, German minister for culture and media) have developed that alone shows the conflict of concepts.

CULTURE MAY NOT DECAY TO A “COMMODITY”

The “double nature” of cultural goods rescues the term “culture.” In the sense of GATS, cultural goods become “trade goods”. However since time immemorial, they have been bearers of values and meanings. Culture describes the diversity of human existence and the marvelous capacity of human self-development, of living “humanly” almost everywhere in a specific way. Culture covers the whole meaning of life: love, relations, affinities, home, community, emotional fulfillment and intellectual ability. Trade agreements in “cultural goods and services” ignore all this and simply define culture as “goods”.

“Cultural diversity” covers the diversity of different cultures, countries and states and also the diversity within a society and a state. An important challenge comes to democratic societies. The wide-ranging possibilities in the cultural sector are an essential pillar of pluralism.

The prehistory of the “Unesco Agreement to Protect and Promote the Diversity of Cultural Forms” was marked by varied motives and interests of the most different groups worldwide. These groups allied in creating this new international law instrument. Several important stages should be briefly sketched.
In 1995 the “General Agreement on Trade in Services” (GATS) worked out in the Uruguay round of the WTO took effect. GATS includes services in education, culture, social life and the media. For the European Union (EU), these negotiations were conducted by the EU foreign trade commissioner’s office, not by the areas education, culture and so forth. The following examples illustrating the opposition in the ideas of both “parallel worlds” and their concepts – cultural policy here and WTO/GATS there – are in the sense of commercial law:

· State support and state subsidies to stimulate culture,
· Support of individual population groups discriminates against others,
· Reinterpreted solidarian collaboration into a cartel.

REPORT OF UNESCO

Parallels can be seen in Unesco activities. The report “Our Creative Diversity” appeared in 1995 from the “world commission for culture and development” under Javier Perez de Cuellar. It shows a clear shift in view of the current problematic from “development policy” to “cultural diversity” and cultural diversity’s importance for human existence. Since 1995, discreet negotiations were conducted in the IECD parallel to GATS with the goal of granting the same rights to international investors. When these negotiations became known publically, vehement reactions of affected professional associations in France led to former Prime Minister Jospin withdrawing from the negotiations. In 1998, this OECD round was broken off.

Given these processes, the question about transparency and coherence of these far-reaching decisions presses. Neither responsible politicians in parliament and government nor the citizens were included in the negotiations. Commercial law may not be set above cultural policy and support. Continuous deregulations are impossible in the scope of WTO-principle decisions. Cultural instruments cannot be termed superfluous without informing responsible politicians and the general public. These are principle decisions that encroach deeply in the public and personal life of every individual and permanently change both.

THE SPECIAL ROLE OF “CULTURAL GOODS”

The consequences of GATS were emphasized at the “3rd world culture conference” of Unesco in 1998 in Stockholm. After very lively discussion, the following action plan was presented in paragraph 12:

The conference urges states to fully acknowledge the difference between cultural goods and services on one side and other commercial goods on the other side and to treat them differently.

The effect of globalization of markets on the cultural sector is recognized here as a present problem. Special national rules, quality standards, access restrictions and targeted public support of selected suppliers in the cultural area may not be classified as “competition-distorting interferences” (in the sense of commercial law); they are cultural instruments.

A WORLDWIDE NETWORK OF CULTURAL ACTORS ARISES

What politicians responsible for foreign trade “forget” in the past is made up for in the aftermath of Stockholm. An informal worldwide network, the “International Network on Cultural Policy” (INCP) was established in 1998 by Sheila Copps, Canada’s minister of culture (usually rather powerless at home). This was certainly no accident in view of Canada’s geographic nearness to the US superpower. This network was a reaction to the danger of a “unilateral command of the thought of the world,” an increasing leveling of worldwide cultural possibilities given the capital power of the US culture industry (the second largest export of the US after the aviation industry). This network is developing into the engaged lobby for a Unesco agreement in cultural diversity. Threads are pulled internationally behind the scenes.

A declaration on cultural diversity was subsequently worked out in the framework of Unesco. In 2000, the Council of Europe “overtook” Unesco with a moderate text on “cultural diversity” that quickly became insignificant. In 2001, Unesco finally passed a “Universal Declaration on Cultural Diversity.” The quality of the text made this declaration into an acknowledged reference document up today. Nevertheless the “declaration” still has no authority in international law.

In the meantime the “plurality theme” became increasingly popular. Unesco reacted with the introduction of the “world day of cultural diversity” (May 20). Without the existence of the GATS agreement, this would have been enough. However making the theme “cultural diversity” into the theme of a convention was urgent through the extension of the competence of the WTO and its services agreement GATS to education, culture, social necessities and the media. Culturally-specific rules should be set alongside commercial law, the rules of the WTO with the same rank – with just as broad a consensus as GATS. The danger existed that a social model could creep in relatively soon with the principle of continuous liberalization of our international trade agreements. This social model has been regarded as a success model of history since the beginning of the enlightenment and its ideas of the “social contract”: in its balance between “public” and “private” found again and again.

Then things started happening very fast. In 2003, the US returned into Unesco after a nearly 20-year absence. With its weight as the largest contributor, the US hopes to influence the new international law agreement. In the meantime the lobby work of the INCP and campaigns of globalization opponents (for example Seattle) are increasingly successful. The ministers of culture appeared with a strong presence at the 32nd General conference of Unesco in 2003. Striving for goodwill, the US aimed argumentatively at the disassociation of state and culture and emphasized that tragedies often occur when the state interferes in culture.

THE ROLE OF “PUBLIC LIFE”
In view of German history, this may be a correct conclusion and lesson drawn from history. The “general public,” the “public life” and the whole wealth and diversity of cultural life of a country decide in democratic cultural policy, not “the state.” “Public radio” is committed to this task. Democratically legitimated governments assume the responsibility of promoting cultural creativity and participation. Contrary to the American argument, culture ultimately profits from state tax exemption.

“COALITIONS FOR CULTURAL DIVERSITY”

Many “coalitions for cultural diversity are arising worldwide in the sense of “public life.” In April 2005 the fourth International Forum of Cultural Organizations “Cultural Diversity as a New Pillar of International Law” took place in Madrid. All participants accepted the challenge of making active connections to the civil societies of countries whose governments were negative to a “Unesco Agreement to Protect and Support the Diversity of Cultural Forms.” Work on an agreement, a convention on “cultural diversity,” continues. In 2004 a group of international law experts called by the general director of Unesco presented a text of the convention. The overwhelming majority of government delegations will accept this text very positively.

PRESERVATION AHND SUPPORT OF CULTURAL DIVERSITY IN EUROPE

In an important contribution to this development, the 25 EU member states in a European opinion agreed that the diversity of ideas and lifestyles constitutes Europe’s wealth… the European states are united that the creative possibilities of public cultural policy with all their instruments and mechanisms must remain absolutely preserved even in the scope of the ordered economic liberalization. This is in effect for the member states themselves and for the EU in the area of cultural support that should safeguard the wealth of cultural and linguistic variety (for example, there are over 200 native languages beside the 20 official languages) and insure the protection and development of Europe’s cultural inheritance. Europe’s identity lies in the “variety of individuals, personal stories, opinions and achievements,” in short in diversity (Gyorgy Konrad).

PARALLEL WORLDS – EVEN IN THE EU

The existence of the “parallel worlds” of GATS and the United Nations/Unesco also turns up within the EU. While the draft of the “service guidelines” in the “Lisbon process” corresponded to the GATS agreement in the European setting, the EU takes a completely different position.

VOTE IN OCTOBER 2005

A draft will be voted on at the 33rd General conference from October 3-21, 2005. The prospects of its passage are good…

The main item of the “Agreement to Protect and Support the Diversity of Cultural Forms” (amended version, April 2005) is Article 6 concerning the right of every state to take regulatory and financial measures to protect the diversity of cultural forms in its state territory. Conflicts between this statement and GATS appeared when liberalization promises were made in relation to GATS. For example, New Zealand at the end of 1990 could not set any quotas for local services since these would have violated New Zealand’s obligations to GATS. Since GATS according to Art. XIX exerts pressure in the sense of “progressive liberalization,” it was only a question of time until “cultural services” would be on the WTO agenda. With its ratification, the Unesco convention would be a counterweight to GATS.

PROBLEMATIC COMPATIBILITY

The command of coherence of universal international law rules necessitates a minimum of compatibility between these two previously independent rules of international law.

Concerned about deficient coherence between the WTO rules and Unesco rules on protection of cultural diversity, the general director of Unesco, Koichiro Matsuura, suggested a consultation process within the WTO. An agreement on principles was reached within Unesco just before the ending of the last Unesco government conference in May/June 2005. Article 20 of the revised draft of June 2 is an attempted harmonization of the relation of GATS and the Unesco agreement through a collision clause. According to this draft, the Unesco convention cannot be subordinated or modified by any other agreement. Provisions of the Unesco convention must be considered in interpreting existing or new obligations.

In addition, the convention in Article 13 obligates the active support for the goals and themes of the convention in other international venues. The EU commission as the probably agreement partner of the Unesco convention must comply with this in future negotiations on WTO agreements!

SOLVING CONCRETE CONFLICTS

An expert legal opinion by the German Unesco commission points out that the drafted texts do not solve concrete conflicts. In the absence of applicable international law rules, the relation of GATS to the Unesco convention is governed only by specific rules of both agreements. For want of terms open to interpretation, anchoring the consideration of the Unesco agreement in the GATS context is imperative. The expert opinion makes different proposals like the establishment of a Unesco observer position at the WTO in Geneva or participation of Unesco organs as experts in WTO disputes. Beyond passing and ratifying the “Unesco Agreement to Protect and Support the Diversity of Cultural Forms,” other ways must be initiated so these two international law regulations are compatible in disputes – an indispensable presupposition for the peaceful further development of international relations in a constructive atmosphere. (cf. www.unesco.de)