[Ecommerce] Bridges Weekly: UNESCO OVERWHELMINGLY APPROVES CULTURAL DIVERSITY TREATY

[Thiru Balasubramaniam]

BRIDGES Weekly Trade News Digest - Vol. 9, Number 36    26 October 2005



UNESCO OVERWHELMINGLY APPROVES CULTURAL DIVERSITY TREATY

The UN Educational, Scientific and Cultural Organisation (UNESCO) voted
overwhelmingly on 20 October to approve a new global convention for the
protection of cultural diversity, in spite of staunch opposition from the
US. Supporters of the treaty hailed it as a victory for free expression,
claiming that it will help governments protect national cultural identities
and traditions from the homogenising pressures of foreign competition.
Opponents charged that it could curb free speech and serve as a pretext for
arbitrary protectionism, particularly in the entertainment industry.
However, the accord's implications for existing and future trade law remain
far from clear.

The product of two years of sometimes acrimonious negotiations, the
Convention on the Protection and Promotion of the Diversity of Cultural
Expressions received the support of 148 countries during the UNESCO General
Assembly in Paris. Only the US and Israel voted against it. Australia,
Honduras, Liberia and Nicaragua abstained. The convention will enter into
force once ratified by 30 governments.

France and Canada, the treaty's sponsors, believe that its affirmation of
countries' "sovereign right" to promote diversity in "cultural expressions"
will give them ammunition to counter demands that they renounce the use of
subsidies, quotas, and other measures to support domestic cultural products
such as movies, broadcasting, and publications. Certain such measures are
currently permissible under the so-called "cultural exception," the
exemption of audiovisual goods and services from some trade disciplines,
championed by France during the Uruguay Round.

Washington argues that governments could use the new convention to place
limits on imports such as Hollywood movies and US-produced music and
television programming. Louise Oliver, the US ambassador to UNESCO, has
criticised the convention for being "open to misinterpretation," arguing
that it threatens the free flow of ideas and could even be used to justify
government censorship, particularly against ethnic minorities. The US also
contends that governments could abuse the treaty to impose arbitrary trade
restrictions on purported cultural grounds, say, on coffee, textiles, or
foie gras.

The US' view, however, is not shared by most of its traditional allies. Even
the UK, which had withdrawn from UNESCO alongside the US in 1984 (both
subsequently rejoined the organisation), endorsed the convention
wholeheartedly. The UK's ambassador to the summit, Timothy Craddock,
proclaimed it "a great day for UNESCO" on behalf of the EU, saying that they
had "agreed to disagree" with "one country" on the matter.

Trade effects unclear

Contradictory statements from different governments about how the treaty
will affect existing and future trade agreements -- especially WTO rules on
services, goods, and subsidies -- suggest that the picture is blurred (see
BRIDGES Weekly, 8 June 2005,
http://www.ictsd.org/weekly/05-06-08/inbrief.htm). This lack of clarity is
embodied in Article 20 of the convention, which deals with its relationship
to other treaties. Some countries have argued that the article's clause that
"nothing in this convention shall be interpreted as modifying rights and
obligations of the parties under any other treaties" means that the treaty
will not take precedence over trade agreements including the WTO. However,
the same article also stipulates that countries "shall take into account"
the UNESCO treaty "when interpreting and applying the other treaties to
which they are parties or when entering into other international
obligations." France says that the latter clause bolsters the legal case of
countries that are resisting pressure in future trade negotiations to open
their cultural sectors to foreign imports.

Korean cultural organisations believe that the adoption of the accord will
buttress the country's case for maintaining a quota system that requires
cinemas to dedicate 40 percent of shows to domestically produced films,
according to the Korea Times. The US has been putting pressure on Korea to
weaken the domestic content requirement as a prelude to bilateral trade and
investment negotiations.

Other countries such as India, one of the world's biggest film exporters,
have maintained that the convention pertains to culture, not trade.

Manon Ress, director of the Consumer Project on Technology's (CPTech)
Information Society Project, described the convention's provisions with
regard to future international trade agreements as "a safety valve at best,"
suggesting that it might be of use to countries such as France, Canada, and
Korea, but perhaps not to smaller countries engaged in bilateral trade
negotiations with the US.

Many trade analysts have suggested that the convention is more symbolic than
anything else. They point to the treaty's weak dispute settlement
provisions -- non-binding mediation and conciliation without any mechanism
for sanctions -- as further evidence that the US's anxieties are overblown.
CPTech's Ress said that the deal was certainly symbolic, but that it was
also important, since it "pushed back the idea that anything comes under
trade rules" and recognised that "there is some difference between cultural
products and other goods."

US angry about process, will lobby against ratification elsewhere

The 28-odd amendments to the agreement proposed by the US were also rejected
by the UNESCO's membership, although they did receive support from countries
including Australia, Libya, and Rwanda. This came in spite of an all-out
diplomatic offensive by Washington to modify the accord or delay its
approval, including a letter from US Secretary of State Condoleezza Rice
warning governments that the accord would "sow conflict rather than
cooperation."

Nevertheless, US lobbying is thought to have significantly influenced the
evolution of the convention, specifically with regard to its explicit link
to existing treaties, which includes trade agreements. France and Canada had
initially hoped to secure a wholesale exemption of cultural products from
the WTO.

The US, for its part, has vowed to lobby countries to not ratify the deal,
and to convince them not to seek its mention at the WTO's December
Ministerial Conference in Hong Kong. In Rome for meetings with Italian
counterparts, senior US State Department official Kristin Silverberg said
"the biggest thing we can do is get countries to agree not to misuse [the
UNESCO convention], that they not cite it in the Hong Kong talks in support
of 'cultural exceptions.'"

The penultimate draft of the convention (the final version is not yet
public) is available at
http://unesdoc.unesco.org/images/0014/001403/140318e.pdf.

"Next lone U.S. dissent: Cultural diversity pact," INTERNATIONAL HERALD
TRIBUNE, 12 October 2005; "UNESCO Adopts Cultural Diversity Pact," KOREA
TIMES, 21 October 2005; "US 'Pulls Out All Stops' As UNESCO Backs Culture
Treaty," INTELLECTUAL PROPERTY WATCH, 17 October 2005; "A Global Culture War
Pits Protectionists Against Free Traders," NEW YORK TIMES, 5 February 2005;
"Dimwitted Nod to 'Diversity,'" WASHINGTON POST, 12 October 2005; "A
Thousand Flowers," OUTLOOK INDIA, 24 October 2005; "Unesco Adopts New Plan
Against Cultural Invasion," NEW YORK TIMES, 21 October 2005; "Hollywood
Lobbyist Concerned About Protectionism," REUTERS/HOLLYWOOD REPORTER, 23
October 2005; "UN to back France against US culture," THE AUSTRALIAN, 21
October 2005; "US isolated over cultural diversity," FINANCIAL TIMES, 19
October 2005; "US Stands Alone on Unesco Cultural Issue," NEW YORK TIMES, 13
October 2005; "General Conference adopts Convention on the protection and
promotion of the diversity of cultural expressions," UNESCOPRESS, 20 October
2005; "US official heads to France for talks on UNESCO convention," AGENCE
FRANCE PRESSE, 21 October 2005.