Strasbourg, 27 March 2003
 

AP-MD(2003)004
 
 

Comments on the draft Convention on Cultural Diversity prepared by the International Network of Cultural Policy (INCP)

______

by

the AP-MD of the Council of Europe
(Prof Dieter Drr, Ms Maria Rosario Monaco, Mr Sigve Gramstad, Prof Peter Bruck, Mr Jacques Favre and Ms Zrinjka Perusko Culek)

&

Dr Verena Wiedemann
ARD, Brussels

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I. CONTEXT

Under the terms of reference which it received from the CDMM in 2003, the AP-MD has been entrusted to “follow from a media perspective the developments on cultural diversity at the international level, including concerning the preparation of a draft international instrument on this matter, with a view as appropriate to making recommendations to the CDMM on how to address this question”.

In order to assist the CDMM in its work on the question of cultural diversity, the AP-MD has prepared the following comments on the draft instrument on cultural diversity (see Appendix) prepared by the International Network on Cultural Policy (INCP). These comments aim at examining the extent to which the Convention proposed by INCP would promote cultural diversity in the context of trade liberalisation agreements and negotiations, in particular from the perspective of broadcasting organisations. These comments have been prepared by the AP-MD-with the contribution of Dr Verena Wiedemann.

II. GENERAL OBSERVATIONS

The draft INCP text for a Convention on cultural diversity is an attempt to counterbalance the existing WTO international legal instruments that regulate trade -namely the GATS agreement- with a view to improving the present situation as regards the international exchange and trade of cultural goods and services. In so doing, it aims at elevating cultural diversity as a policy objective both at the national and international levels.

The most important and immediate added value of the Convention, in the short and medium term, would be of a political nature. The Convention would offer the means to form alliances between countries faced with liberalisation pressures for their cultural services in the WTO framework. Left alone when confronted with the economic pressures known to be used by powerful trading nations in such negotiations, with the aim of obtaining important legal concessions for the opening up of different markets, many countries appear prone to give in to such pressures -- with potentially very detrimental consequences for cultural diversity. Thus, the obligation foreseen under the draft Convention for Parties to consult with each other before entering into any relevant commitments in other international fora is of crucial importance.

This being said, given the inherent weakness that a Convention on cultural diversity is likely to have vis--vis the well-established international trade agreements, a serious effort should be made to give the INCP text some “teeth”, and, furthermore, the rights and obligations of contracting parties as regards their cultural policies should be spelled out as clearly as possible. In any event, it is considered that the legal impact of such a Convention on WTO Agreements would in most countries be limited at the best. This is because the Convention cannot change the rights and duties of members under the WTO Agreements. For example, Parties to the Convention who are also members of the GATS Agreement will remain free to resort to the dispute settlement procedures under GATS and to insist on the observance of obligations entered into under the trade agreement, even though such commitments may conflict with the principles set out in the Convention.

In its Declaration on Cultural Diversity of 7 December 2000, the Council of Europe has called upon its member States to examine ways of sustaining and promoting cultural and linguistic diversity in the new global environment. A convention on cultural diversity could be a way for member States of the Council of Europe to pursue this objective, and is therefore a welcome initiative.

It is also recalled that in its report on media diversity in Europe, of December 2002, the AP-MD mentions the threats to cultural diversity/pluralism which would result from further trade liberalisation in the audiovisual sector, and calls on the member States of the Council of Europe to carefully consider the possibility of adopting a convention on cultural diversity on the basis of the work carried out by the INCP.

III. SPECIFIC DETAILED COMMENTS

Preamble

The INCP text contains a relatively short and condensed preamble. The draft makes reference to the Council of Europe Declaration on Cultural Diversity of 7 December 2000, the UNESCO Universal Declaration on cultural diversity, and other pertinent UNESCO documents. However, a number of key concerns of the Council of Europe are missing from the text.

Nowhere in the preamble is there any explicit reference to media policies and media pluralism. Given the essential contribution of the media to freedom of expression, cultural diversity and democracy, it is considered that such references should be made here.

The explicit mentioning of media policies is also important with a view to the treatment of cultural services under GATS: the classifications used for services distinguish between, on the one hand, "recreational, cultural and sporting services" (including, for example, theatres, live bands, libraries, archives and museums) and, on the other, audiovisual services (including, for example, cinema, radio and television), which are classified under "communications services".

Thus, an explicit mentioning of media policies as falling within the scope of the Convention would be helpful to avoid any legal ambiguities when interpreting the Convention.

In line with the Council of Europe Declaration, which affirms that “media pluralism is essential for democracy and cultural diversity” and recalls the commitment of the member States “to defend and promote media freedoms and media pluralism as a basic precondition for cultural exchange”, the INCP text could make a similar reference in the preamble.

Article 1: Definitions

Although the definitions of “culture” and “cultural diversity” are broadly formulated and also cover the media, it would be preferable to draft these key definitions making specific reference to the media.

The definition of "cultural policies", which also determines the scope of the Convention, might lead to interpretations that are too narrow for the purposes of Council of Europe member States. In the audiovisual field in particular, not all measures which serve to promote cultural diversity and media pluralism are cultural policy measures in the strict sense. It would therefore be desirable to clarify the meaning of the term "cultural policies", so that it covers all policies with a direct or secondary cultural objective.

It is proposed to amend the definitions under Article 1 as follows:

"Cultural policies" refers to a framework of goals, practical objectives and measures adopted by public authorities to preserve tangible or intangible cultural heritage, to favour cultural expression directly or indirectly, to develop cultural industries and preserve and promote cultural diversity and media pluralism nationally and internationally”.

Cultural contentrefers to …sounds, images and texts of films, video, sound recordings, books, magazines, newspapers, broadcast programmes and other forms of media including multimedia, whether in archives or now existing on the market, that are the creation of individuals or cultural industries. This definition, which is open to embrace new developments, thus ensures that new forms of cultural content not yet explicitly mentioned, such as electronic games, could also be covered and governed by legitimate cultural policies.

Cultural industries”: add “collect, store and preserve” to the list of activities employed by cultural industries in order to cover all activities relevant for the preservation and promotion of cultural content and cultural heritage.

Public service institutions”: delete the word “essentially” from the definition and change to “organisations entrusted with the fulfilment of public service obligations and totally or partly publicly funded”.

Linking the definition of public service to funding from public sources is a very problematic and potentially detrimental approach. Many years of negotiations between EU member States and the European Commission about the proper financing of public service broadcasting have led to the conclusion that the notion of majority funding is often unjustified. For example, it would undermine and possibly even ruin the legitimacy of public service broadcasters in small countries and in small language areas whose population cannot afford to finance viable high quality public service programming. In such cases, public service broadcasters often have no alternative other than to rely on advertising/sponsorship revenues for the majority of their funding. It must be avoided that the Convention ever gives rise to similar legal disputes at the international level, because such disputes could prove to be most harmful to public service institutions, particularly those serving smaller communities. Therefore, public service institutions, at least partly publicly funded, should also be covered by the Convention.

Article 2: Objectives

The objectives set out in the draft Convention are generally speaking deemed acceptable. However, it would be desirable if the Convention specifically pointed out that the promotion and preservation of media pluralism was also one of the objectives of the Convention (this could be done by adding a reference in recital (a).

In addition, recital (e) could be amended to read “provide a basis for the promotion and recognition of the principles of this Convention in other international fora, including international trade fora. It is considered important to refer not only to the promotion but also the recognition of the principles of the Convention. This provision reflects one of the key objectives of the Convention as regards WTO challenges, namely its relevance in respect of other international instruments. However, the term “promotion of principles” is rather vague and non-committal. It is understood that the real aim of the Parties to the Convention will be to achieve a legally binding impact of the principles of the Convention in international trade law. This goal may be very difficult to achieve, but should nevertheless be clearly expressed as one of the objectives of the States that become Parties to the Convention.

CHAPTERS 2 & 3: General principles relating to the promotion and preservation of cultural diversity & Ensuring the development of cultural expression and cultural diversity at the national level

It is considered that chapters 2 and 3, which set out the cultural policies that could be regarded as “discriminatory” under WTO rules, and are therefore rightly protected under the Convention, should be read together. The principles and specific measures mentioned in these chapters constitute the heart of the rights and obligations that countries which accede to the Convention shall have with respect to cultural policies. Thus, these chapters may become the most contested ones of the entire Convention. At the same time, it is these chapters that will ultimately determine whether any of the obligations of the contracting States will actually be actionable under the Convention.

Article 5

This Article is one of the key provisions of the Convention, because it requires Parties to ensure that “any action considered necessary to achieve the objectives of this Convention must reflect the balance between the promotion of domestic cultural expression and openness to other cultural influences...”. What is unclear is whether every policy in itself has to meet the standard of proper balance, or whether it is permissible to look at the overall cultural policies of a country in order to decide if the test has been met? This Article is likely to be characterised as protectionist by some critics of the Convention, but this is not the view of the AP-MD. Furthermore, the latter considers that the balancing test mentioned in this provision should be conducted taking into account all the cultural policies of a State and not an individual policy measure.

In line with the above, the proposed wording for this Article could be: “Measures considered necessary to achieve the objectives of this Convention must reflect an overall balance between the promotion of domestic cultural expression and openness to other cultural influences...”.

Article 6

It would appear that Article 6 should come before Article 5, since it contains the general recognition of the importance of public policy for the safeguard of cultural diversity. Article 5 then states that any such public policy must be balanced to take due account of the principle of openness to other cultures.

Article 7

The transparency requirement in this Article, as currently formulated, is quite weak. It is mentioned as a “legitimate expectation of society and citizens”, but there is no guidance on how this requirement should be met. This contrasts with the centrality and strictness of the transparency requirement under the GATS Agreement, where members are under an obligation to publish promptly and, at the latest at the time of their coming into force, any measures that are relevant for the application of the Agreement.

Since the Convention aims at becoming an alternative legal framework for cultural goods and services, it must be devised in such a way as to provide parties interested in fostering international exchange of cultural products with some useful tools to improve the present situation. The transparency requirement could be a useful mechanism in this respect.

The following amendment is therefore proposed for this Article:

Understanding the importance of transparency, each Party shall, in accordance with its particular conditions and capabilities, publish all relevant measures of general application which pertain to or affect the operation of this Convention and shall also establish mechanisms to provide specific information on all such measures.

Article 8

This Article, recognising the importance of freedom of speech and freedom of information for cultural diversity, should also mention media pluralism.

Article 13

This Article, which rightfully enshrines the principle of freedom of a Party to choose a cultural policy measure in the light of its own conditions and circumstances, refers to Articles 14 to 17 as examples of certain types of policies that appear particularly important for the development of cultural expression. However, this Article falls short of envisioning a procedure by which a non-binding list of best practices and guidelines for successful cultural policies could be developed over time as part of the Convention. Such identification of best practices is currently foreseen in Article 20, para. (b), but only for best practices that can facilitate access to a wider range of foreign cultural products.

Without any procedures for the elaboration of non-binding lists of best practices/ recommendations to foster domestic cultural products, the proposed Convention fails to establish a flexible mechanism allowing it to respond to new policy developments and challenges from globalisation, without which the instrument could become “frozen in time”. It is therefore recommended that a provision with this objective be incorporated in the Convention, either in this Article or in Article 23, which deals with the responsibilities of the Council.

Article 15

It is proposed to reformulate the text as follows:

Parties recognise that public financial support, both direct and indirect, in the vast majority of States, is essential for the promotion and development of cultural expression...”.

Given that public financial support can take many forms, it should be made clear that indirect public support, such as tax incentives, is also considered as a legitimate policy.

Article 16

The following wording is proposed:

Parties recognise that public service institutions play an important role for the in safeguarding and promoting of cultural diversity and encourage their use; it is for each Party to organise such institutions, define their remit, provide for their funding, and facilitate and encourage their use. They also recognise the authority of each State to provide the funding of such public service institutions insofar as such funding is granted to them for the fulfilment of the public service.”

While the present draft explicitly recognises the competence of Parties to fund public service institutions, it fails to contain a similar recognition of Parties’ competence also to define and organise a public service institution. In addition, it would be preferable if there were no qualification of Parties’ competence to fund public service institutions. The limitation proposed in the INCP text is based on European state aid laws, which correctly limit the public funding allowed to what is needed for the fulfilment of the public service.

However, European state aid law aims at preserving fair competition, a consideration that has no role to play in the context of public funding for the benefit of cultural diversity. It should also be understood that whilst this criterion has given the European Commission the opportunity to scrutinise the public service remit as defined by EU member States and to check the methods and the amount of public funding in great detail (which seems acceptable within the legal safeguards of the EC-Treaty), any such power on the part of an international dispute settlement body would be misguided. Incidentally, this caution in the area of subsidies is shared by the members of GATS. Although the GATS calls on members to work out disciplines on subsidies for the purpose of limiting their potentially harmful effects on international trade, very little progress has been made to date in this dossier.

Article 17

According to the present text, it is unclear whether the Parties shall be allowed to foster domestic independent cultural industries, or whether they shall be required to ensure that their instruments are equally available to independent cultural industries from different countries. In this respect, it should be borne in mind that the majority transmission time quota of European works contained in Article 10 of the European Convention on Transfrontier Television is a measure supporting independent cultural industries within the Parties to the Convention. Thus, it should be made clear that measures supporting independent cultural industries are legitimate, not only at the domestic level, but also at the wider European level.

Parties recognise the contribution of independent cultural industries to the achievement of cultural diversity and ensure, where practicable and by appropriate means, that independent cultural industries, in particular domestic ones, have effective access to the means of production, distribution and diffusion of their works.

Article 20

The reference in the draft to the importance of competition law to ensure access to diverse cultural expression appears insufficient in two respects. Firstly, the reference is made solely with regard to improved access to a broad choice of foreign cultural products, whereas it is just as important to ensure access to domestic cultural products. Secondly, it disregards the importance of sector-specific rules, for example media ownership regulations aimed at securing plurality of voice in the media sector, to ensure access to diverse cultural products.

Proposed amendment for Article 20 (c):

"Recognise the importance of general competition laws law as well as sector-specific rules in areas such as the media, in order to ensure access for citizens and the public in general to diverse cultural expression, both domestic and foreign."

Article 21

This Article is considered as one of the key provisions, since it provides that Parties to the Convention wishing to submit proposals or make commitments that could represent a risk to the preservation of cultural diversity –for example in the context of GATS negotiations- should first inform the other Parties to the Convention and seek their observations.

The obligation for the Parties to consult with each other before they enter into any commitments in other international fora if these can have an impact on cultural diversity is a powerful political tool to organise alliances and devise successful strategies in international trade negotiations. Thus, great care should be taken in drafting this clause. In particular, a specific procedure should be set up, ensuring that mutual consultation in such cases will not be left to happenstance. Such a procedure could be included in Article 23, which deals with the responsibilities of the Council. In this case, explicit reference to Article 23 should be made in the last sentence of Article 21.

The following wording is proposed instead:

Parties should pay particular attention to the need to sustain and promote cultural diversity in other international fora where it may be directly or indirectly called into question. When they are called upon to make commitments that could put at risk have an impact on the preservation and/or promotion of cultural diversity, they consult for the purpose of developing a common approach in that regard....

CHAPTER 5: Institutional arrangements and dispute settlement

Although it is considered that the setting-up of a dispute settlement body under the Convention goes beyond what is usual in international instruments of this type, and although the nature of the disputes which may arise are not so clear, the establishment of a body of this type might prove useful as a means of influencing the decisions and interpretations taken under the WTO dispute settlement bodies. In effect, case law suggests that a dispute settlement body set up under GATS could refer to the Convention for the interpretation of certain obligations at stake between the Parties, provided that both (or all) Parties subject to the WTO dispute settlement procedure were also parties to the Convention on cultural diversity. In this way, the Convention might have some limited legal implications within the framework of the WTO. In any event, option 2 of the dispute settlement procedure proposed in the INCP draft is too weak (since under this alternative text, judgments would ultimately remain non-enforceable) and, therefore, the preferred drafting for Article 24 is option 1.

* * *

APPENDIX

Draft Text of an
International Instrument/Convention
on Cultural Diversity

Outline

Preamble
Chapter 1: Definitions, objectives and scope
Chapter 2: General Principles relating to the promotion and preservation of cultural diversity
Chapter 3: Ensuring the development of cultural expression and cultural diversity at the national level
Chapter 4: Promoting and enhancing cultural diversity at the international level
Chapter 5: Institutional arrangements and dispute settlement
Chapter 6: Final provisions
Annexes

PREAMBLE

The member States signatory hereto

Considering that the right of everyone to freely participate in the cultural life of the community is an inalienable human right conforming to the principle embodied in Article 27 of the Universal Declaration of Human Rights and in Article 15 of the United Nations International Covenant on Economic, Social and Cultural Rights,

Recalling the provisions of the UNESCO Declaration of the Principles of International Cultural Co-operation adopted in Paris in 1966, and particularly its Article 1 which states that “each culture has a dignity and value which must be respected and preserved”,

Having regard to the Declaration on Cultural Diversity adopted by the Council of Europe on 7 December 2000, to the Cotonou Declaration on cultural diversity adopted by the culture ministers of the International Organization of the Francophonie on 15 June 2001 and to the Universal Declaration on Cultural Diversity adopted by UNESCO on 2 November 2001,

Conscious of the efforts needed to face the challenges of cultural development and preservation of the diversity of cultures, as expressed in "Our Creative Diversity", the Report of the World Commission on Culture and Development, and recalling the principles and action plan adopted by the Intergovernmental Conference on Cultural Policies for Development, held at Stockholm in 1998,

Noting that culture is at the heart of contemporary debates about identity, social cohesion, and the development of a knowledge-based economy,

Recognizing that new trends, particularly globalization, link cultures ever more closely and enrich the interaction between them, but that they may also be detrimental to the preservation of cultural identities and cultural diversity,

Recognising that the development of new information technologies and evolving multilateral trade policies pose a fundamental challenge to the ability of governments to nurture and promote cultural diversity using existing cultural policy tools,

Recognizing that even if it falls primarily to the States to take up this challenge from their own cultural perspective, it is also clear that the shared global context for development requires the elaboration of a set of principles and rules which will provide a coherent framework for sustaining and enabling cultural diversity at all levels,

Recognizing that there is a pressing need for increased domestic and international recognition and management of cultural diversity to ensure the linguistic, cultural, civil and human rights of citizens, while at the same time sustaining a basic level of shared identity, social cohesion and national solidarity in a global environment

Recognizing that the cultural expression, envisaged a means of social communication, is part and parcel of the democratic process of our societies and as such has a preponderant role to play in meeting the challenge of preserving cultural diversity,

Considering that cultural diversity is a source of creativity and an essential factor of social and economic development,

Conscious of the special needs of developing and least developed countries whose cultural sector is often in a nascent stage and of the necessity in this respect to integrate cultural policies into development policies,

Convinced that it is necessary that the freedom of States and governments to maintain and develop policies, which promote and preserve cultural diversity, be respected and recognized,

Determined to protect cultural diversity while encouraging cultural exchange,

Affirming the importance of promoting coherence between provisions of multilateral trade policies and cultural policies,

Agree as follows:

CHAPTER 1: Definitions, Objectives and Scope

Article 1: Definitions

For the purposes of this Convention:

a. “Culture” is the whole complex of distinctive spiritual, material, intellectual, and emotional features that characterize a society or social group. It includes creative expression (e.g., oral history, language, literature, performing arts, fine arts, and crafts), community practices (e.g., traditional healing methods, traditional natural resource management, celebrations, and patterns of social interaction that contribute to group and individual welfare and identity), and material or built forms such as sites, buildings, historic city centres, landscapes, art, and objects.

OR

“Culture” is the whole complex of distinctive spiritual, material, intellectual and emotional features that characterize a society or social group. It includes not only arts and letters but also modes of life, the fundamental rights of the human being, value systems, traditions and beliefs (UNESCO).

b. “Cultural diversity” refers to the plurality of cultures that coexist in the world. It implies on the one hand the preservation and promotion of existing cultures, and on the other hand receptivity to other cultures.

c. “Cultural policies” refers to a framework of goals, practical objectives and measures adopted by national and sub-national authorities to preserve cultural heritage, tangible and intangible, to favour the development of cultural expression and to preserve and promote cultural diversity nationally and internationally.

d. “Cultural expression” refers to the creation, production distribution and exhibition of cultural contents, in any medium or form, existing or to be created.

e. “Cultural content” refers to the creative output of individual creators and cultural industries which is typically protected by intellectual property rights and includes: 1) the creative output of individuals in the performing arts, visual arts and crafts, architecture and design; 2) the sounds, images and texts of films, video, sound recordings, books, magazines, newspapers, broadcast programs and other forms of media including multimedia, whether now existing or to be invented, that are the creation of individuals or cultural industries; 3) the collections and displays of museums, galleries, and libraries, including archives relating to the cultural heritage of a society.

f. “Cultural industries” refers to organizations and enterprises that create, produce, publish, distribute, exhibit or provide cultural contents.

g. “Independent cultural industries” refers to enterprises, which are not subject financially, creatively or in terms of ownership to majority control by large private companies and public service institutions.

h. “Public service institutions” refers to organizations established and essentially publicly funded for the fulfilment of public service obligations with respect to culture and cultural diversity as conferred, defined and organized by each Member State.

Article 2: Objectives

The objectives of this Convention, as elaborated more specifically through its principles and rules, are to:

a. ensure that cultural diversity is promoted and preserved in the face of the changes introduced by globalization, trade liberalization and technology;

b. preserve the right of States to maintain or adopt the measures that they consider appropriate to the development of cultural expression and to the promotion and enhancement of cultural diversity;

c. serve as a frame of reference for all those States that consider the achievement and maintenance of distinct cultural expression and the preservation of cultural diversity itself as an essential component of globalization;

d. reinforce international cooperation and solidarity aimed at enabling all countries, especially developing countries and least developed countries, to create and maintain cultural industries that project their own vision at the national and international level;

e. provide a basis for the promotion of the principles of this Convention in other international fora, including international trade fora.

Article 3: Scope

This Convention applies to the cultural policies that Member States maintain or adopt.

CHAPTER 2: General Principles Relating To The Promotion And Preservation of Cultural Diversity

Article 4: The particular nature of cultural products

When devising national or international policies or measures, the Members agree to take into account the particular nature of cultural goods and services, as vectors of identity, values and meaning that must not be treated as mere commodities or consumer goods.

Article 5: The balance inherent to the concept of cultural diversity

Any action considered necessary to achieve the objectives of this Convention must reflect the balance between the promotion of domestic cultural expression and openness to other cultural influences that is inherent to the concept of cultural diversity.

Article 6: The importance of public policy

Market forces alone cannot guarantee the maintenance and promotion of diverse cultural expressions and of cultural diversity. Public policy, developed in partnership with civil society and the private sector are of a vital importance in realizing the objectives of the present Convention.

Article 7: Transparency

Transparency in the elaboration and management of cultural policies is a legitimate expectation of society and citizens and a necessary condition for the good working of the present Convention.

Article 8: Freedom of expression and information

Members acknowledge that cultural diversity cannot be expressed without ensuring the conditions for freedom of speech, freedom of information and free creative expression existing in all forms of cultural exchanges.

Article 9: Intellectual property

Nothing in this Convention shall derogate from existing obligations that Members may have to each other under existing intellectual property conventions.

Article 10: Cultural rights and cultural diversity

Members, recognizing that cultural rights provide an enabling environment for the realization of cultural diversity, promote and encourage understanding of the nature and significance of such rights in their cultural policy.

Article 11: Existing regime of protection of human rights

Nothing in this Convention may be interpreted as implying any right to engage in any activity or perform any action infringing upon human rights presently guaranteed by international law, nor to limit their scope.

CHAPTER 3: Ensuring the Development of Cultural Expression and Cultural Diversity at the National Level

Article 12: Cultural policies

Members recognize the importance of promoting through appropriate cultural policies an environment favourable to the development of cultural expression and cultural diversity at the national level. They take this concern into consideration in the formulation of their national policies in other sectors.

Article 13: Freedom of choice of appropriate measures

1. Acting in conformity with the principles of balance and transparency enunciated in Chapter 2, Members determine in light of their own particular conditions and circumstances what measures are appropriate to ensure the promotion and preservation of cultural expression.

2. For greater clarity, Articles 14 to 17 deal with certain types of policies that appear particularly important for the development and preservation of cultural expression. The mention of these policies does not exclude in any way recourse to other measures.

Article 14: Maintaining a space for domestic cultural products

Members, recognizing that the maintenance of a cultural space for national products is a necessary condition for preserving cultural diversity at the international level may, when they deem appropriate, adopt measures conducive to guaranteeing such a space, including language and/or content requirements, where applicable. When they adopt such measures, Members acting in conformity with the principles of Chapter 2, shall ensure that government policies do not undermine the principle of openness to other cultures.

Article 15: Financial support

Members recognize that public financial support, in the vast majority of States, is essential for the promotion and development of cultural expression and do their best to ensure that appropriate financial support is made available to achieve this objective. They consider in that regard that it is for each State to decide on the nature, importance and beneficiaries of that support.

Article 16: Public service institutions

Members recognize that public service institutions play an important role for the safeguarding of cultural diversity and encourage their use. They also recognize the authority of each State to provide for the funding of such public service institutions insofar as such funding is granted to them for the fulfilment of the public service.

Article 17: Independent cultural industries

Members recognize the contribution of independent cultural industries to the achievement of cultural diversity and ensure, where practicable and by appropriate means, that independent cultural industries have effective access to the means of production, distribution and diffusion of their works.

CHAPTER 4: Preserving and Enhancing Cultural Diversity at the International Level

Article 18: Reinforcing international cultural cooperation

Members, conscious of the efforts needed to face the challenges of cultural development and preservation of the diversity of cultures, actively promote cooperation and interchange between their respective governments, cultural institutions and their private cultural organizations with a view to enriching and disseminating cultural and artistic expression and promoting cultural diversity.

Article 19: Facilitating the exchange of information

Members shall facilitate the exchange of information, from all publicly available sources, relevant to the promotion and preservation of cultural diversity, taking into accounts the special needs of developing and least developed countries.

Article 20: Improving access to the diversity of foreign cultural products

In order to facilitate access to a broad choice of foreign cultural products, Members:

a. Encourage, when appropriate, the conclusion of cultural co-production and co-distribution agreements.

b. Consult in order to identify measures and best practices that can facilitate access to a wider range of foreign cultural products, such as fiscal incentives to distributors of foreign cultural products, financial aid for translating or dubbing foreign works and opening up of special outlets.

c. Recognize the importance of competition laws for citizens and the public in general in order to ensure access to diverse cultural expression

Article 21: Promoting cultural diversity in other international fora

Members pay particular attention to the need to sustain and promote cultural diversity in other international foras where it may be directly or indirectly called into question. When they are called upon to make commitments that could put at risk the preservation of cultural diversity, they consult for the purpose of developing a common approach in that regard. Members refrain from making commitments contrary to the objectives of the present Convention.

Article 22: Development Assistance

1. Members shall cooperate in the development and strengthening of human resources and institutional capacities in cultural production for the purpose of the effective implementation of this Convention in developing and least developed country Members, including through existing global, regional, sub regional and national institutions and organizations.

2. In order to counter the digital divide, Members work in close cooperation with relevant international organizations to foster access by the developing and least developed countries to the new technologies, by helping them to master information technologies and by facilitating the digital dissemination of endogenous cultural products and access by those countries to the digital resources available world-wide.

3. At the latest at the end of the first year of entry into force of this Convention, developing and least developed country Members submit specific requests for facilitating their cultural exchanges with developed country Members.

4. Developed country Members undertake to submit, at the latest at the end of the second year of entry into force of this Convention, concrete proposals for facilitating their cultural exchanges with developing and least developed country Members.

Note on Chapters 5 and 6

At the 2001 Annual Ministerial Meeting of the INCP, Ministers called for the further development of an International Instrument on Cultural Diversity, which includes a common vision, objectives, and norm-setting elements. Among other issues to be addressed in the international instrument, Ministers noted that “existing international agreements in the cultural sector do not sufficiently address the policy issues inherent in globalization ensuring cultural diversity. Most instrument are of a declaratory nature only and are unable to balance out the international trading system with its enforceable dispute settlement mechanisms”.

Therefore, in order to address these particular issues, the Working Group on Cultural Diversity and Globalization believes that an enforceable international instrument must include:

- An administrative body to manage the agreement
- A dispute settlement mechanism
- Procedures for entry into force, modification, accession, withdrawal

What follows in Chapters 5 and 6 are two possible options for the fulfilment of these necessary functions. They should be read and considered also in light of the findings of the Special Policy Research Team on Governance Issues, which can be found under separate cover. It is not intended that any possible or eventual institutional arrangement is being ruled out by the use of a stand-alone approach in this text. A critical element for further discussion will clearly be the linkages between the Instrument and existing international organizations.

CHAPTER 5: Institutional Arrangements and Dispute Settlement

Article 23: The Council

1. A Council of the Members, in which each Party has equal representation, is hereby established to manage this Convention. All decisions by the Council shall be by consensus. The Council shall determine its own rules and procedures.

2. The Council shall oversee the operation of this Convention. It shall be responsible in particular for:

    a. developing a framework of governance for the Convention, including the setting up of a secretariat;

    b. discussing and resolving any question relating to implementation of this Convention;

    c. following up implementation of the Convention based on the information provided by the Members;

    d. evaluating the application of this Convention and proposing, if necessary, ways to enhance the operation of this Convention;

    e. deciding upon the application of States to accede to this Convention.

3. Members shall submit to the Council within the first two years of entry into force of this Convention their national cultural policy framework and proposed measures for the promotion of cultural expression and achievement and preservation of cultural diversity. They shall subsequently provide information on changes, which impact the implementation of their cultural policies.

4. Members hereby establish a Committee on Cultural Policies comprising representatives of each Member. The Committee functions shall include:

    a. monitoring and promoting co-operation on the implementation and administration;

    b. providing a forum for the Members to consult on related issues at least annually and as the Members may otherwise agree;

    c. reporting annually to the Council.

Article 24: Dispute Settlement (Option 1)

1. Members accept to resolve their disputes concerning the interpretation and application of the Convention through a Committee of Experts set up by the Council to resolve disputes following the procedures below.

2. If one or more Members considers a measure taken by one or more Members to be inconsistent with this Convention, that Complaining Member or Members (the Complainant) may request in writing to the Respondent and the Chairman of the Council consultations with the other member or Members (the Respondent).  The parties to the dispute shall, within 20 days of receipt of the request, consult with each other with a view to resolving the issue.

3. If the issue has not been resolved through consultations within 45 days of receipt of the request for consultations, any of the parties to the dispute may request, in writing, to the other party to the dispute and the Chairman of the Council that a Committee of Experts be established to consider the issue in accordance with procedures set out in Annex 1.  Any conclusions adopted by the Committee shall be by consensus.

4. After the request for a Committee of Experts has been made and the Committee formed to hear the dispute, the Complainant shall submit its views in writing (the complaint) to the Chairman of the Council and the Respondent.  Within 30 days of receiving the complaint, the Respondent shall forward its reply to the Chairman of the Council and the Complainant, together with its supporting evidence and documentation.

5. The Committee of Experts shall forward its conclusions to the Parties to the dispute within 60 days of the date on which the Committee of Experts received the Respondent's submission provided for in paragraph 3 of this Article or the expiration of the period in which such submission is to be made in accordance with paragraph 3 of this Article.

6. Where the Committee of Experts finds that the Respondent has breached this Agreement, the Committee shall provide in its conclusions a reasonable period of time for the Respondent to rectify its breach.  The period established shall be the shortest reasonable time period feasible.  If the Parties to the dispute have not agreed by the expiry of that period that the breach has been rectified, the Complainant may set forth in writing, to the presiding expert and the Respondent evidence of non-compliance and request the Committee to decide whether the breach has been rectified.  The Respondent shall have 21 days from the date of receipt of the Complainant's request to the presiding expert to respond to the Complainant's allegations.  The Committee shall issue its decision within 15 days after the expiration of the deadline for the Respondent's response.

7. The decision of the Committee of Experts is submitted for approval to the Council. If the decision is approved, the Respondent shall implement it in good faith. If the Council finds that the Respondent has failed to rectify such breach within the designated period of time, the Complainant may suspend its obligations in relation to the Respondent.

8. The Members to the dispute may agree for purposes of a specific dispute under this Article to follow different procedures than those set out in this Article for the purpose of expediting, enhancing, or facilitating the resolution of the specific dispute.

Article 24: Dispute Settlement (Option 2)

1. In the event of a dispute between Members concerning the interpretation or application of this Convention, the parties concerned shall seek solution by negotiation.

2. If the parties concerned cannot reach agreement by negotiation, they may jointly seek the good offices of, or request mediation by, a third party.

3. When ratifying, accepting, approving or acceding to this Convention, or at any time thereafter, a State may declare in writing to the depositary that for a dispute not resolved in accordance with paragraph 1 or paragraph 2 above, it accepts one or both of the following means of dispute settlement as compulsory:

    a. Arbitration in accordance with the procedure laid down in Part 1 of Annex 2;
    b. Submission of the dispute to the International Court of Justice.

4. If the parties to the dispute have not, in accordance with paragraph 3 above, accepted the same or any procedure, the dispute shall be submitted to conciliation in accordance with Part 2 of Annex 2 unless the parties otherwise agree.

CHAPTER 6: Final Provisions

Article 25: Notification procedure

1. The laws, regulations and prescriptions of Members relating to cultural policies in existence at the date of entry into force of this Convention shall be incorporated in a Schedule communicated to the Council and to the Committee on Cultural Policies.

2. In the case of a State which adheres to the present Convention after its entry into force, the laws, regulations and requirements relating to cultural practices in force on its territory at the date of its adhesion shall be incorporated in its Schedule.

3. Each Member shall promptly and at least annually inform other Members of any new, or any changes to existing, laws, regulations or administrative guidelines relating to the maintenance and promotion of cultural expression and cultural diversity.

4. Members that are developing countries or that are countries in the initial stages of development shall be allowed a certain flexibility in providing the information requested.

Article 26: Amendment

1. Any Party may propose amendments to this Convention or its annexes.  The text of any proposed amendment shall be submitted to the depositary, which shall promptly communicate it to all Members at least ninety days in advance of its consideration by the Council.

2. Initial consideration of any proposed amendment shall take place at the first meeting of the Council following communication of the proposed amendment. Amendments shall be adopted by the Council by unanimous vote.

3. Instruments of acceptance in respect of an amendment shall be deposited with the depositary.  An amendment shall enter into force for Members having accepted it on the thirtieth day following the receipt by the depositary of the instruments of acceptance of a majority of Members. Thereafter, it shall enter into force for each Member depositing its instrument of acceptance on the thirtieth day following the receipt by the depositary of that Party's instrument of acceptance.  Each State that accedes to this Agreement after the entry into force of any amendment shall become a Member to the Agreement as amended.

Article 27: Entry into force

The present Convention shall come into force after the deposit of 30 instruments of ratification. As regards any signatory ratifying subsequently, the Convention shall come into force at the date of the deposit of its instrument of ratification.

Article 28: Accession

Any country may accede to this Convention following approval in accordance with the applicable procedure of each country.

Article 29: Withdrawal

A Member may withdraw from this Convention six months after it provides written notice of withdrawal to the other Members. Withdrawal shall take effect six months after the date of receipt of the notification, unless the notification specifies a later date or the notification is withdrawn prior to this date.

Article 30: Depositary

The Chairman of the Council shall act as depositary of the present Convention.

Article 31: Authentic texts

The English, French, Spanish texts of this Convention are equally authentic.

ANNEX (1): The Committee of Experts

1. The Parties shall establish a list of experts in cultural matters.

2. Each Party shall appoint four experts to this list, who shall be its nationals.

3. The list shall be maintained by the depositary.

4. The Parties to the dispute shall agree on the selection of three experts from the list, none of whom shall be nationals of the Parties to the dispute and one of whom shall be from a developing country.  In the event the Parties to the dispute cannot agree within 15 days from the date of the request for the establishment of a Committee of Experts made to the Chairman of the Council, the Chairman of the Council shall select these three experts, none of whom may be nationals of the Parties to the dispute, at random from the list.  The Chairman of the Council shall conduct such random selection in the presence of official representatives designated by the Parties to the dispute.

5. When the Chairman of the Council receives the Complainant's and Respondent's complete submissions in accordance with 27 (4) of this Convention, the Chairman of the Council shall forward the submissions to the experts appointed by the Parties to the dispute within three days.  Should an expert not be available, a replacement shall be appointed by the affected Party or Parties, or selected by the Chairman of the Council, in accordance with procedures set out above in paragraph 4.

6. The Parties to the dispute shall bear their own respective costs and expenses incurred in relation to the proceedings before the Committee of Experts.  The fees and expenses of the experts shall be borne by the Parties to the dispute, in equal shares.

The Council shall adopt rules of procedure that will apply to the Committee of Experts established pursuant to Article 27 (3) of this Convention.

ANNEX (2): (On the Model of the Convention on Biological Diversity)

PART 1: Arbitration

Article 1

The claimant party shall notify the secretariat that the parties are referring a dispute to arbitration pursuant to Article 27. The notification shall state the subject-matter of arbitration and include, in particular, the articles of the Convention or the protocol, the interpretation or application of which are at issue. If the parties do not agree on the subject-matter of the dispute before the President of the tribunal is designated, the arbitral tribunal shall determine the subject matter. The secretariat shall forward the information thus received to all Contracting Parties to this Convention or to the protocol concerned.

Article 2

1. In disputes between two parties, the arbitral tribunal shall consist of three members. Each of the parties to the dispute shall appoint an arbitrator and the two arbitrators so appointed shall designate by common agreement the third arbitrator who shall be the President of the tribunal. The latter shall not be a national of one of the parties to the dispute, nor have his or her usual place of residence in the territory of one of these parties, nor be employed by any of them, nor have dealt with the case in any other capacity.

2. In disputes between more than two parties, parties in the same interest shall appoint one arbitrator jointly by agreement.

3. Any vacancy shall be filled in the manner prescribed for the initial appointment.

Article 3

1. If the President of the arbitral tribunal has not been designated within two months of the appointment of the second arbitrator, the Secretary-General of the United Nations shall, at the request of a party, designate the President within a further two-month period.

2. If one of the parties to the dispute does not appoint an arbitrator within two months of receipt of the request, the other party may inform the Secretary-General who shall make the designation within a further two-month period.

Article 4

The arbitral tribunal shall render its decisions in accordance with the provisions of this Convention, any protocols concerned, and international law.

Article 5

Unless the parties to the dispute otherwise agree, the arbitral tribunal shall determine its own rules of procedure.

Article 6

The arbitral tribunal may, at the request of one of the parties, recommend essential interim measures of protection.

Article 7

The parties to the dispute shall facilitate the work of the arbitral tribunal and, in particular, using all means at their disposal, shall:

a. Provide it with all relevant documents, information and facilities; and
b. Enable it, when necessary, to call witnesses or experts and receive their evidence.

Article 8

The parties and the arbitrators are under an obligation to protect the confidentiality of any information they receive in confidence during the proceedings of the arbitral tribunal.

Article 9

Unless the arbitral tribunal determines otherwise because of the particular circumstances of the case, the costs of the tribunal shall be borne by the parties to the dispute in equal shares. The tribunal shall keep a record of all its costs, and shall furnish a final statement thereof to the parties.

Article 10

Any Contracting Party that has an interest of a legal nature in the subject-matter of the dispute which may be affected by the decision in the case, may intervene in the proceedings with the consent of the tribunal.

Article 11

The tribunal may hear and determine counterclaims arising directly out of the subject- matter of the dispute.

Article 12

Decisions both on procedure and substance of the arbitral tribunal shall be taken by a majority vote of its members.

Article 13

If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or a failure of a party to defend its case shall not constitute a bar to the proceedings. Before rendering its final decision, the arbitral tribunal must satisfy itself that the claim is well founded in fact and law.

Article 14

The tribunal shall render its final decision within five months of the date on which it is fully constituted unless it finds it necessary to extend the time-limit for a period which should not exceed five more months.

Article 15

The final decision of the arbitral tribunal shall be confined to the subject-matter of the dispute and shall state the reasons on which it is based. It shall contain the names of the members who have participated and the date of the final decision. Any member of the tribunal may attach a separate or dissenting opinion to the final decision.

Article 16

The award shall be binding on the parties to the dispute. It shall be without appeal unless the parties to the dispute have agreed in advance to an appellate procedure.

Article 17

Any controversy which may arise between the parties to the dispute as regards the interpretation or manner of implementation of the final decision may be submitted by either party for decision to the arbitral tribunal which rendered it.

ART 2: Conciliation

Article 1

A conciliation commission shall be created upon the request of one of the parties to the dispute. The commission shall, unless the parties otherwise agree, be composed of five members, two appointed by each Party concerned and a President chosen jointly by those members.

Article 2

In disputes between more than two parties, parties in the same interest shall appoint their members of the commission jointly by agreement. Where two or more parties have separate interests or there is a disagreement as to whether they are of the same interest, they shall appoint their members separately.

Article 3

If any appointments by the parties are not made within two months of the date of the request to create a conciliation commission, the Secretary-General of the United Nations shall, if asked to do so by the party that made the request, make those appointments within a further two-month period.

Article 4

If a President of the conciliation commission has not been chosen within two months of the last of the members of the commission being appointed, the Secretary-General of the United Nations shall, if asked to do so by a party, designate a President within a further two-month period.

Article 5

The conciliation commission shall take its decisions by majority vote of its members. It shall, unless the parties to the dispute otherwise agree, determine its own procedure. It shall render a proposal for resolution of the dispute, which the parties shall consider in good faith.

Article 6

A disagreement as to whether the conciliation commission has competence shall be decided by the commission.