THE UNESCO CONVENTION OF 2005 AND ITS OPERATIONAL GUIDELINES

I am very pleased that Martinus Nijhoff Publishers/Brill  has published the posthumous Liber Amicorum to honour Kader Asmal's memory under the Direction of Professor Tiyanjana Maluwa. The title of this book is Law, Politics, and Rights: Essays in Memory of Kader Asmal.   This marks a very happy ending to the collective journey embarked upon together when Judge Abdulqawi Yusuf, contacted me to cooperate with Professor Tiyanjana Maluwa.   

*Tiyanjana Maluwa, editor of these essays, is the H. Laddie Montague Chair in Law and Associate Dean for International Affairs at the Dickinson School of Law, and concurrently Director of the School of International Affairs, Pennsylvania State University, United States of America.

 

My article was entitled :

"The Unesco Convention of 2005 and its operational guidelines"

The full article will be available in Liber Amicorum Kader Asmal :“LAW, POLITICS AND RIGHTS: ESSAYS IN MEMORY OF KADER ASMAL”.

* Souheil el Zein graduated in law at the University of Beirut and at The Hague Academy of International law before obtaining his Ph.D. from the Sorbonne University in Paris. From 2002 to 2012 he worked in the Office of International Standards and Legal Affairs of UNESCO. Previously he was the Legal Director of Interpol. He has been involved with and followed the preparation of many international conventions, in particular the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, the Convention on Cyber-Crime of the Council of Europe as well as the UNESCO Convention on Intangible Cultural Heritage of 2003 and the 2005 UNESCO Convention on the Diversity of Cultural Expressions.

I.                   INTRODUCTION 

“Armed with this new legal instrument, the cause of culture throughout the world will henceforth be reinforced. We can all be proud to have participated in this priceless contribution to future generations. Remember George Orwell, who wrote about the ‘great unwashed’ – the poor, the dispossessed, the alienated masses. They have to be heard, and it is going to be the cultural industries in many developing countries that will provide the sinews of culture and development to eliminate the ‘great unwashed’ referred to by Orwell. In preparing this text, we have safeguarded not only the achievements of previous generations, but we have also acknowledged our responsibility towards future generations by creating favourable conditions for the nourishment and sustainability of culture.” (Closing Remarks by Professor Kader Asmal, Chairman of the Third Intergovernmental Meeting of Experts on the Draft Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions, UNESCO, 25 May - 3 June 2005).

Introduction: 

International lawyers who are not familiar with the standard-setting instruments of United Nations Educational, Scientific and Cultural Organization (UNESCO) relating to the fundamental ideals and norms underlying its Constitution and its leadership in the field of culture and peace, may not understand Professor Kader Asmal’s closing remarks above.  Nor may they understand how the “soft law” of UNESCO became “hard law” following a flexible monitoring system, depending on the due diligence and the actions of international actors (States, international organisations and NGOs).  By “soft law,” we mean in particular the following instruments: the Declaration of Principles of International Cultural Cooperation of 1966, the 1968 Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works, the 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore[1][1][1], the Declaration on the Responsibilities of the Present Generations Towards Future Generations of 197[2][2][2] and the Universal Declaration on Cultural Diversity of 201[3][3][3].

The failure of these international lawyers to assess objectively this process led them to make spectacular comments suggesting that there was a “clash of civilisations” between trade and culture.  They also concluded rapidly that the Convention for the Protection of the Diversity of Cultural Contents and Artistic Expressions “endorsed under the auspices of UNESCO [would]  remain a mere exercise of forum shopping without any longer term consequences beyond the present freezing of commitments in the World Trade Organization (WTO).”[4][4][4]  They presented the new treaty of UNESCO “as a thinly disguised attempt, led by France and Canada, to offer a shield against the spread of American culture, in particular Hollywood movies”[5][5][5] and allegedly detected the intention of “the friends of culture” in going into war against what is called the global governance.[6][6][6]

 

The reality of the relationship between trade and culture as mirrored in State disputes and debates is more complex than this presumed war.

Yet, it does not justify the criticisms directed by some commentators at Professor Asmal’s efforts to find a consensus during the negotiations for the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (hereinafter “UNESCO Convention of 2005” or “Convention”)[7][7][7]

It also does not justify the argument that the Convention is inferior to World Trade Organization (WTO) law on international trade, especially with respect to the regulation of cultural exchange. As a human rights scholar and as someone familiar with the problem of cultural resistance to the permissive concept of global Governance [8][8][8], Kader Asmal was aware of the tensions among WTO and UNESCO Member States about trade and culture and their extreme polarization. But he was not in war when he was trying to guide the work of preparing a legal instrument within UNESCO which would go beyond trade law or when he was criticizing the scepticism expressed regarding the difficult ratification of the UNESCO convention following its adoption by an overwhelming majority of 148 states (with only the US and Israel voting against it during the 33rd session of the General Conference of UNESCO)[9][9][9].

Indeed, as it turned out, this skepticism was unfounded. In fact, the ratification process of the Convention was very rapid. It has beaten all the records for the ratification of UNESCO’s standard-setting instruments. The Convention entered into force on 18 March 2007 in accordance with its Article 29. More than 121 countries [10][10][10] have now ratified it, thus effectively committing themselves to implementing it.

The purpose of this chapter is not to take issue with all the negative comments made during the negotiations or following the adoption of the UNESCO Convention, since each of these above rationales has been subject to extensive critical literature. Instead, we refer to the views of various international legal scholars[11][11][11] who, despite their very varied motivations and arguments, share the common conviction in the potential of the UNESCO convention in order to conclude that the major achievement of the Convention is the filling of a lacuna in public international law regarding cultural values. Secondly, we will examine the issue of the of the fragmentation of the international law of cultural goods and services at face value in order to assess the extent to which the UNESCO Convention of 2005 has been successful in achieving its own stated objectives and its operational implementation. 

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[1]This recommendation was very important for the negotiation and adoption of the UNESCO Convention for the Safeguarding of Intangible Cultural Heritage (2003) which might also be included in the definition of “cultural expression” or cultural goods or services, even if its text does not deal with intellectual propriety rights. For a comprehensive analysis of all the above instruments, see Abdulqawi Yusuf (ed.), Normative Action in Education, Science and Culture, Vol.I, (Leiden/Boston: Martinus Nijhof Publishers, 2007).

[2] Declaration adopted on 12 November, 1997 recalling that the responsibilities of the present generations towards future generations have already been referred to in various instruments such as the Convention for the Protection of the World Cultural and Natural Heritage, adopted by the General Conference of UNESCO on 16 November 1972, the United Nations Framework Convention on Climate Change and the Convention on Biological Diversity, adopted in Rio de Janeiro on 5 June 1992, in order to deal with the new risks of the environment on nature and human beings and their culture.

[3] Declaration adopted on 2 November, 2001 reaffirming that “culture should be regarded as the set of distinctive spiritual, material, intellectual and emotional features of society or a social group, and that it encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs” in order to identify cultural rights as an enabling environment for cultural diversity and to foresee, in its paragraph 18, the development of “appropriate regulatory frameworks designed to promote the principles enshrined in this Declaration”.

[4] See Michael Hahn, “A Clash of Cultures? The UNESCO Diversity Convention and International Trade Law”, 9 J. Int‘l. Econ. L. 515 (2006), pp. 523-524; for a contrary view, see Tania Voon, “UNESCO and the WTO: A Clash of Cultures?”, 55 International and Comparative Law Quarterly 635 (2006).

[5] Sean Pager “Beyond Culture vs. Trade: Decentralizing Cultural Protection to Promote Diversity Through Trade”, available at http://works.bepress.com/cgi/viewcontent.cgi?article=1002&context=sean_pager. J. Pauwelyn, “The UNESCO Convention on Cultural diversity, and the WTO: Diversity in International Law- Making?”, available at http://www.asil.org/insights/2005/11/insights051115.html.

[6] See Christoph B. Grabeer, “The New UNESCO Convention on Cultural Diversity: A Counterbalance to the WTO?”, 9 J. Int’l. Econ. L. 553 (2006); for a more balanced view, see Mira Burri, “Cultural Diversity as a Concept of Global Law: Origins, Evolution and Prospects”. Unpublished paper. World Trade Institute, University of Bern, Switzerland. (Copy available with author).

[7] The draft Convention’s language was broadened to include concepts such as mutual supportiveness.  It also referred to the principle of good faith and emphasized its non-subordination to other treaties. As viewpoints on dispute settlement matters differed greatly, the President of the Plenary, Prof. Kader Asmal, set up an informal working group to try to bridge differences. See UNESCO, Appendix 2 to the Preliminary Report of the Director-General Containing two Preliminary Drafts of a Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions. Consolidated Text prepared by the Chairperson of the Intergovernmental Meeting, Document CLT/CPD/2005/CONF.203/6 – Add., 29 April, 2005.

[8] While no one has yet provided a precise definition of “global governance”, the frequency with which global governance is invoked in the scholarly literature and in policy practice far exceeds the number of times it is precisely or carefully defined. As a result, the term “global governance” is applied to a wide variety of different practices of order, regulation, systems of rule, and patterned regularity in the international arena, where health, environment and copy rights are treated as goods and services open for global liberalization with limited exceptions which neglected cultural expressions in danger or exposed to loose its diversity.

[9] Adopted on 20 October in its meeting in Paris from 3 to 21 October, 2005.

[10] Almost all states expressing support for the UNESCO Convention are members of the WTO.

[11] See Jan Wouters and Maarten Vidal “UNESCO and the Promotion of Cultural Exchange and Cultural Diversity” in supra note 1, p. 147. See also I. Bernier & H. Ruiz-Fabri, “La mise en oeuvre et le suivi de la Convention de l'UNESCO sur la protection et la promotion de la diversité des expressions culturelles”, in  Implementing the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions : Future Actions, Study carried out on behalf of the Government of Quebec (2006), available at http://www.mcc.gouv.qc.ca/diversite-culturelle/pdf/UNESCO-francais.pdf. See J.P. Singh, “Culture or Commerce? A Comparative Assessment of International Interactions and Developing Countries at UNESCO, WTO, and Beyond”, 8 Int. Stud. Perspect. (2007), pp. 36-53. K. Acheson  and C. Maule, “Convention  on  Cultural  Diversity”  28 Journal  of  Cultural Economics 247 (2004). Anke Dahrendorf, “Trade meets Culture: the Legal Relationship between WTO rules and the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions”. Working Papers, University of Maastricht, Faculty of Law, 2006/11, October 2006. Mira Burri-Nenova, “Trade and Culture in International Law: Paths to (Re)Conciliation”, 44 J. World Trade Law 49 (2010).