U 32nd session, Paris 2003 32 C - UNESDOC Databaseunesdoc.unesco.org/images/0013/001307/130798e.pdf · U General Conference 32nd session, Paris 2003 32 C 32 C/52 18 July 2003 Original:

U General Conference 32nd session, Paris 2003 32 C

32 C/52 18 July 2003 Original: French

Item 5.11 of the provisional agenda

DESIRABILITY OF DRAWING UP AN INTERNATIONAL STANDARD-SETTING INSTRUMENT ON CULTURAL DIVERSITY

OUTLINE

On the initiative of Canada, France, Germany, Greece, Mexico, Monaco, Morocco and Senegal, supported by the French-speaking Group at UNESCO, an item entitled Preliminary study on the technical and legal aspects relating to the desirability of a standard-setting instrument on cultural diversity was placed on the agenda of the 166th session of the Executive Board (166 EX/28). After examining the study prepared by the Secretariat, the Executive Board invited the Director-General to submit the study to the General Conference together with its own observations and a reference to the relevant international instruments (166 EX/Decision 3.4.3).

This document contains the Preliminary study on the technical and legal aspects relating to the desirability of a standard-setting instrument on cultural diversity (166 EX/28 – Appendix 1), 166 EX/Decision 3.4.3 (Appendix 2), the observations made by the Executive Board at its 166th session (Appendix 3) and the reference to the relevant international instruments (Appendix 4).

Decision required: paragraph 6.

1. At its 166th session, the Executive Board examined document 166 EX/28 entitled Preliminary study on the technical and legal aspects relating to the desirability of a standard-setting instrument on cultural diversity (Appendix 1). This document appraised the most recent activities in that area, highlighted the international standard-setting corpus relating to cultural diversity that is currently applicable, or under preparation within the United Nations and UNESCO, and explored lines of inquiry as to the desirability, nature and scope of a new instrument on cultural diversity.

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2. In accordance with Article 5 of the Rules of Procedure concerning recommendations to Member States and international conventions covered by the terms of Article IV, paragraph 4, of the Constitution, the Director-General reproduces in this document the above-mentioned study and the decision taken in that regard by the Executive Board (Appendix 2). The observations made by the Executive Board at its 166th session (Appendix 3) and a reference to the relevant international instruments (Appendix 4) are also included.

3. The Members of the Executive Board reiterated their commitment to “deepen the international debate on questions relating to cultural diversity … taking forward notably consideration of the advisability of an international legal instrument on cultural diversity” (action plan of the UNESCO Universal Declaration on Cultural Diversity, 2001). They recommended “to the General Conference that it take a decision to continue action aimed at drawing up a new international standard-setting instrument on cultural diversity and to determine the nature of that instrument” (166 EX/Decision 3.4.3).

4. The debates on the four options proposed in document 166 EX/28 for a possible new UNESCO instrument, namely (a) a new comprehensive instrument on cultural rights; (b) an instrument on the status of the artist; (c) a new Protocol to the Florence Agreement; and (d) protection of the diversity of cultural contents and artistic expressions, concluded that the last option was the most relevant, and the most appropriate form for it would be an international convention (Appendix 3).

5. This prospect prompted the Members of the Executive Board to request the Director-General to include in this document a reference to relevant international instruments in force relating to cultural diversity, and more particularly the protection of the diversity of cultural contents and artistic expressions, so as to ensure a proper linkage between the proposed new instrument and the relevant international instruments. That is the subject of Appendix 4 of this document.

6. The General Conference may wish to adopt the following draft resolution:

The General Conference,

Having examined document 32 C/52 containing the Preliminary study on the technical and legal aspects relating to the desirability of a standard-setting instrument on cultural diversity, and the observations made by the Executive Board in that regard at its 166th session,

Having taken note, in accordance with 166 EX/Decision 3.4.3, of the reference to the relevant international legal instruments with regard to cultural diversity, and more particularly the protection of the diversity of cultural contents and artistic expressions (option (d), paragraph 23), the preliminary study reproduced in Appendix 1 of document 32 C/52),

Bearing in mind that when elaborating a new international standard-setting instrument it is essential to take account of existing international legal instruments,

Decides that the question of cultural diversity as regards the protection of the diversity of cultural contents and artistic expressions must be regulated by an international convention;

Invites the Director-General to submit to the General Conference at its 33rd session, in accordance with Article 10 of the Rules of Procedure concerning recommendations to Member States and international conventions covered by the terms of Article IV, paragraph 4, of the Constitution, a preliminary report setting forth the position with regard to the problem to be regulated and to the possible scope of the regulating action proposed, accompanied by the first draft of a convention on the protection of the diversity of cultural contents and artistic expressions.

32 C/52 Appendix 1

APPENDIX 1

United Nations Educational, Scientific and Cultural Organization Executive Board ex

Hundred and sixty-sixth Session

166 EX/28 PARIS, 12 March 2003 Original: French

Item 3.4.3 of the provisional agenda

PRELIMINARY STUDY ON THE TECHNICAL AND LEGAL ASPECTS RELATING TO THE DESIRABILITY OF A STANDARD-SETTING INSTRUMENT

ON CULTURAL DIVERSITY

SUMMARY

On the initiative of Canada, France, Germany, Greece, Mexico, Monaco, Morocco and Senegal, supported by the French-speaking group of UNESCO, item 3.4.3 has been placed on the agenda of the 166th session of the Executive Board. This working document, drawn up by the Secretariat, appraises the most recent activities on this subject. It highlights the international standard-setting corpus that is currently applicable, or under preparation, relating to cultural diversity and explores lines of inquiry as to the desirability, nature and scope of a new instrument on cultural diversity. It invites the Executive Board to consider the advisability of including this item in the provisional agenda of the General Conference at its 32nd session for examination.

Decision proposed: paragraph 26.

166 EX/28

I. APPRAISAL

1. UNESCO’s commitment to promoting cultural diversity is in keeping with its specific institutional mandate within the United Nations system and with the continuity of the action that it has been carrying out for 50 years “with a view to preserving … the fruitful diversity of the cultures” (UNESCO Constitution). To that end, the Organization has expended efforts on two fronts: on the one hand by reflecting on and defining concepts1 and, on the other, by establishing an ethical and legal framework accepted by the international community.2

2. The growing pace of globalization raised new challenges for cultural diversity which the international community strove to meet by adopting the UNESCO Universal Declaration on Cultural Diversity in November 2001. For the first time, cultural diversity was acknowledged as “the common heritage of humanity”, the defence of which was deemed to be an ethical and practical imperative, inseparable from respect for human dignity. The concept of “diversity” reaffirms that plurality is the reservoir needed for freedoms, that cultural pluralism therefore constitutes the political response to the actual fact of cultural diversity and that such pluralism is indissociable from a democratic framework. Thus, freedom of expression, media pluralism, multilingualism, equality of access for all cultures to artistic expressions, scientific and technological knowledge, and the possibility for them to be present in the means of expression and dissemination constitute essential guarantees of cultural diversity. Finally, cultural policies, which are the true driving force in cultural diversity, should foster the production and dissemination of diversified cultural goods and services.

3. Since the adoption of the UNESCO Universal Declaration on Cultural Diversity, there have been many international initiatives to encourage reflection on the desirability of reinforcing standard-setting action in relation to cultural diversity. Examples include: the Round Table “Cultural diversity and biodiversity for sustainable development” in the framework of the World Summit on Sustainable Development (Johannesburg, 3 September 2002), the Summit on the Francophonie (Beirut, October 2002), the annual Meeting of the International Network on Cultural Policy (Cape Town, South Africa, October 2002) and the adoption of resolution A/RES/57/249 by the General Assembly of the United Nations proclaiming 21 May as “World Day for Cultural Diversity for Dialogue and Development” (20 December 2002). More recently, the Director-General received the Ministers of Culture associated with the International Network on Cultural Policy (INCP) (6 February 2003), who stated that they “were sure that UNESCO’s cultural mandate and its adoption of the Universal Declaration on Cultural Diversity in 2001 had initiated the processes for a legally binding convention that would secure for the world a diversity of cultural expressions”. In Article 12(c), the UNESCO Universal Declaration on Cultural Diversity stipulates that the Organization has the responsibility to “pursue its activities in standard-setting, awareness-raising and capacity-building in the areas related to the (present) Declaration within its fields of competence”. Moreover, the first paragraph of the plan of action invites UNESCO to take forward “consideration of the opportunity of an international legal instrument on cultural diversity”.

4. The question of a standard-setting framework on cultural diversity has already been discussed with various intergovernmental and non-governmental bodies, and also within international associations of cultural professionals and national academic establishments. Those wide-ranging

1 The World Conference on Cultural Policies (MONDIACULT, Mexico City, 1982), the World Decade for

Cultural Development (1988-1997), the work by the World Commission on Culture and Development (Our Creative Diversity, 1995) and the Intergovernmental Conference on Cultural Policies for Development (Stockholm, 1998) contributed significantly to this reflection process.

2 See annex containing a non-exhaustive list of existing international instruments, adopted by the United Nations and UNESCO, which deal with various aspects relating to cultural diversity.

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activities, which underpinned the UNESCO Declaration, continue to feed reflection on the desirability of a new instrument.

5. The Council of Europe adopted a Declaration on Cultural Diversity, the first of its kind, at its 733rd Meeting of the Ministers’ Deputies on 7 December 2000, which highlights the distinctive feature of the audiovisual sector in relation to other industrial sectors, stating in particular that “cultural and audiovisual policies which promote and respect cultural diversity are a necessary complement to trade policies”.

6. The International Organization of the Francophonie (OIF), in the Cotonou Declaration (June 2001) adopted on the occasion of the Third Ministerial Conference on Culture, affirms that cultural goods and services should be given special treatment and that the free determination by States and governments to adopt their cultural policies constitutes the best guarantee of the plurality of cultural expression.

7. The work of the International Network on Cultural Policy (INCP) has highlighted the particular importance of submitting a draft instrument/international convention on cultural diversity under UNESCO’s responsibility, addressing, inter alia, the provisions to promote industry and national cultural expression and also to ensure their receptiveness to other cultures (Cape Town, South Africa, October 2002). In connection with the Franco-Quebec working group associated with this same network, an Evaluation of the legal feasibility of an international instrument on cultural diversity was conducted by Professor Ivan Bernier and Ms Hélène Ruiz Fabri (2002). The report by the working group, formed in 1998, proposes that the instrument be set around three objectives: (i) to place cultural diversity in the context of fundamental rights; (ii) to recognize the right of each State to determine the steps to be taken to ensure diversified cultural expression in its territory; and (iii) to guarantee national measures – in terms of quotas and subventions – which aim at influencing international exchange flows in respect of culture.

8. The International Network for Cultural Diversity (INCD), which brings together artists, cultural activists, cultural bodies and creative industries, stresses the need for an instrument guaranteeing support to artists and the involvement of civil society and encouraging States to adopt a proactive, rather than defensive, position regarding cultural policies.

9. As a sequel to the First International Meeting in Montreal (10-13 September 2001), the Second International Meeting of Professional Cultural Organizations (Paris, 2-4 February 2003) brought together more than 300 participants from 30 countries in order to analyse the impact of the negotiations carried out at the World Trade Organization (WTO) on cultural policies. The meetings discussed the need to draw up an international legal instrument to promote cultural diversity.

10. Lastly, the Freiburg Group, formed in 1991 within the Interdisciplinary Institute for Ethics and Human Rights of the University of Freiburg, subsequently becoming a UNESCO Chair in 1999, submitted a draft optional protocol on cultural rights to the European Convention on Human Rights in 1995. As the work of the ad hoc Commission of the Council of Europe had not been finalized, the Freiburg Group issued, as a co-publication with UNESCO, a preliminary draft declaration on cultural rights in 1998.

II. TECHNICAL AND LEGAL ASPECTS RELATING TO THE DESIRABILITY OF A STANDARD-SETTING INSTRUMENT ON CULTURAL DIVERSITY

11. At the technical level, the concept of cultural diversity raises two main questions: on the one hand, the links between cultural diversity, human rights and cultural rights; on the other, the links

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between diversity, creativity and cultural policies. The Universal Declaration on Cultural Diversity demonstrated that the debate between advocates of cultural goods and services and the champions of human rights could be transcended, the two approaches being complementary. At the legal level, the UNESCO Universal Declaration on Cultural Diversity, although non-binding, refers to a web of interrelated standard-setting texts as reflected in the list of instruments cited in its Preamble. A list of the main international instruments – existing or under preparation – that relate to the articles of the Declaration is annexed. The list, which is not exhaustive, will throw light on the spheres not yet covered by the current body of normative material and which might be the subject of a new instrument.

12. The UNESCO Universal Declaration on Human Diversity reflects the wide range of issues bound up with the acknowledgement of cultural diversity. Accordingly, in the process of reflecting on the nature of a standard-setting instrument on cultural diversity, it is clear that several divisions of the Declaration by thematic field might be envisaged. Nevertheless, for greater convenience at this preliminary stage, the structure of the Declaration has been followed.

(a) Identity, pluralism and human rights (Articles 1 to 6 of the Declaration)

13. Articles 1 to 6 of the Universal Declaration on Cultural Diversity establish the link between the defence of cultural diversity and the observance of human rights and fundamental freedoms, in particular cultural rights, notably insofar as the rights of persons belonging to minorities, the right to education and to multilingualism, and the right to take part in cultural life are concerned. The promotion of cultural pluralism, while not explicitly regulated as such by a specific international standard-setting text, is ensured within many international instruments intended to protect human rights. As regards cultural rights, they are not, any more than is cultural pluralism, the subject of a specific international instrument, and are not so extensively promoted as other human rights. A fuller acknowledgement of the value of cultural diversity as a factor of human security will permit a more fully developed understanding of these rights, and in particular of their unity and indivisibility. Given the abundance of issues entailed by culture – issues that differ according to the approach adopted, whether anthropological or artistic – international law has yet to reach a clear-cut definition of cultural rights and their content.

(b) Cultural diversity and creativity (Articles 7 to 9 of the Declaration)

14. Article 7 of the Declaration highlights the obligation to enhance the heritage in all its forms so as to foster creative diversity and to hand it on to future generations. This obligation amounts in its principle to a number of legal obligations that are well known to Member States and enshrined in the various UNESCO Conventions protecting the cultural heritage both in times of peace and in the event of armed conflict. A draft declaration concerning the intentional destruction of cultural heritage will be submitted to the General Conference for approval at its 32nd session. An obligation to ensure protection and enhancement should also be established in the case of intangible cultural heritage, with the convention currently being prepared on the safeguarding of such heritage, the preliminary draft of which will also be submitted to the General Conference at its 32nd session. Given the close conceptual links that exist between cultural diversity and intangible cultural heritage, the finalization of the convention for the safeguarding of the intangible cultural heritage will provide a sound conceptual basis for a new instrument on cultural diversity.

15. Article 8 of the Universal Declaration on Cultural Diversity stresses for its part the need for due recognition of the rights of authors and artists. At present, two conventions adopted by UNESCO govern the protection of copyright (Universal Copyright Convention of 1952, as revised in 1971) and neighbouring rights (International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome, 1961)). The scope of these

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Conventions has recently been updated through the adoption by the World Trade Organization (WTO), in 1994, of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and that of the “Internet Treaties” (1996) by the World Intellectual Property Organization (WIPO). Although some States are not parties to the new treaties and continue to apply the UNESCO Conventions only, most of them are on the point of adapting their national legislation to these new treaties, or have already legislated for the purpose of acceding to them. It does not therefore appear necessary at this stage to envisage further standard-setting action by UNESCO on this matter. Moreover, a number of aspects relating to the status of creators and artists are covered by the Recommendation concerning the Status of the Artist (1980), a non-binding instrument which continues to be followed to a limited extent in the cultural policies of most States. The scope of this Recommendation was reviewed at the World Congress on the Status of the Artist (Paris, 1997), which highlighted aspects relating to the funding of the arts, support for creation, art education, the arts and the new technologies, the working conditions, taxation and health of artists, the right to collective bargaining and the mobility of artists. Measures to ensure harmonization and the adoption of binding international instruments were recommended by the Congress. While several of the Congress’s recommendations have received positive follow-up in UNESCO’s programmes (art education, the arts and the new technologies), little headway will be made in the case of others without standard-setting action. The status of the artist might be the subject of a new international instrument of a binding nature.

16. Furthermore, Articles 8 and 9 of the Universal Declaration on Cultural Diversity stress the need to recognize the specificity of cultural goods and services as vectors of identity, values and meaning. Two standard-setting instruments of a binding nature, the Florence Agreement (1950) and its Protocol (Nairobi, 1976) were adopted with a view to liberalizing the trade in and flow of cultural goods. However, given the date of their adoption, these treaties do not take account of the new media used for the circulation of literary, scientific and artistic works, which are today enjoying a sizeable expansion as a result of globalization. A second Protocol to the Florence Agreement, designed to organize the international flow of cultural services in the light of present-day economic and technological developments, might be the subject of a new international instrument.

III. PROSPECTS AND OPTIONS FOR FUTURE STANDARD-SETTING ACTION

17. As may be seen from the preceding analysis, several aspects of cultural diversity are already governed by international standards, some binding, some non-binding. In assessing UNESCO’s future prospects for standard-setting in this domain, two preliminary questions come to mind.

18. As regards the legal nature of the instrument, the existence of the Universal Declaration on Cultural Diversity, which despite its undeniable moral authority is non-binding, argues in favour of moving towards a new, more ambitious and, in principle, more effective instrument, in the form of an international convention. As regards the scope of such an instrument, the variety of forms which cultural diversity can take and the difficulty of setting standards for them calls for considerable caution in the normative realm. While the general nature of the Declaration was appropriate to a declaration as such, UNESCO is no longer being asked to lay down a timetable but rather to indicate a frame of reference and a set of rules acceptable to the greatest number of States in the form of a new binding instrument governing specific cultural domains.

19. The central purpose of the new instrument would be to establish a link between the preservation of cultural diversity and the goals of development, notably through the promotion of creative activity and the cultural goods and services through which such activity is expressed. This means, in particular, fostering States’ capacity to define their cultural policies. The goal is to define

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a set of general cultural policy principles in such a way as to ensure the necessary autonomy in national policy while guaranteeing balanced international cooperation. In other words, the point is to ensure consistency between intra-State and inter-State policy. Under such circumstances, one might choose an instrument which placed particular emphasis on areas of cultural diversity in the context of globalization which do not yet enjoy adequate protection under existing conventions or recommendations. In view of the milestone reached with the approval of the UNESCO Universal Declaration on Cultural Diversity, the possible areas which might benefit from standard-setting efforts by UNESCO are as follows.

(a) A new comprehensive instrument on cultural rights

20. International law still does not clearly define cultural rights; nor does it determine exactly which rights fall into that category. What is more, provisions pertaining to cultural rights are scattered about in various international instruments, which impairs consistency and understanding of cultural rights as a whole. Generally speaking, on the basis of existing international instruments, cultural rights can be said to be those which best protect the participation in and access of every person to cultural life: the freedom to engage in creative activity and scientific research, the right to education, and the right of access to forms of artistic expression and to scientific and technological knowledge. In that regard, Article 27 of the Universal Declaration of Human Rights and Articles 13, 14 and 15 of the International Covenant on Economic, Social and Cultural Rights provide important features regarding the content of cultural rights. In addition to the fundamental ideas of “participation in” and “access to” science, culture and education, cultural rights also encompass a series of other freedoms such as those of expression, information and communication (at present only one part of the rights relating to freedom of opinion is explicitly developed in Article 19 of the International Covenant on Civil and Political Rights). This approach means that cultural diversity can be tied in with the universal principles of human rights and democracy, in accordance with Articles 4 and 5 of the UNESCO Universal Declaration on Cultural Diversity.

The wisdom of a specific instrument on cultural rights is under debate. Meanwhile, the prospect of actually seeing one remains very remote even though the Action Plan of the Universal Declaration on Cultural Diversity recommends, in paragraph 4, “Making further headway in understanding and clarifying the content of cultural rights as an integral part of human rights”.

(b) An instrument on the status of the artist

21. This second option would have the advantage of regulating internationally the professional status of creators and artists, whose recognition is at present more theoretical than real. As matters stand, only the protection of copyright and neighbouring rights is provided for in binding normative instruments to which many States are party. The freedom of artists to create, their international mobility, their social benefits, their right to employment, their conditions of remuneration, their tax status, their freedom to organize, their right to collective bargaining, art education, training, health, reintegration of artists due for retirement into the labour market (in the realm of dance for example), together with support for creative activities, financing of the arts and the participation of all in cultural life are all legitimate demands of artists which could be dealt with by UNESCO in such an instrument, perhaps in cooperation with the International Labour Organization (ILO). Nevertheless, because the general regimes governing social benefits and unionization vary widely among States and in view of the economic difficulties facing many of them, the search for consensus would probably produce wording that some would find inadequate and falling short of existing standards in some States. For others it would, by contrast, be very difficult to accept such an instrument for want of appropriate national legislation and the financial resources to meet the new international commitments. Some of these difficulties might be resolved by an instrument with a broader scope such as that described in paragraph (d) below.

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(c ) A new Protocol to the Florence Agreement

22. A new instrument might also take the form of a new Protocol to the Florence Agreement which would govern the circulation of cultural goods and services. The purpose would be to extend to cultural services (or even educational, scientific and cultural services) the scope of the Florence Agreement, adopted by UNESCO in 1950 and ratified by 92 Member States. The Florence Agreement governs the importation of educational, scientific and cultural materials thereby encouraging the free circulation of books, newspapers, periodicals and printed material, works of art, visual and auditory material, scientific instruments and equipment for educational purposes and articles for the blind. Nevertheless, the reservation entered by one Member State and providing for the possibility of “suspend(ing), in whole or in part, any obligation under this Agreement … if … any product covered by this Agreement is being imported into the territory of a contracting State in such relatively increased quantities and under such conditions as to cause or threaten serious injury to the domestic industry in that territory producing like or directly competitive products” is an integral part of the Agreement and may be invoked by any State Party in regard to that State. The Florence Agreement has already been updated by the Nairobi Protocol (1976), which, in response to the concerns of the developing countries and to their needs for access to education, science and culture, removed some forms of discrimination inherent in the Florence Agreement with respect to the content, nature or purpose of films, works of art and collectors’ pieces, scientific equipment and articles for the blind. The Protocol also extended the scope to other cultural goods and materials including sports equipment, musical instruments, and material and machines used for the production of books. At the time of accession, a State may declare its refusal to be bound by particular annexes and such a declaration may be withdrawn at any time. The Nairobi Protocol limits exclusively to the developing countries the possibility of entering a reservation to protect national industry (Protocol, Article VIII). Disputes could be settled by recourse to a flexible procedure such as that already established in the Florence Agreement, or by the use of another mechanism to be determined within UNESCO, or by establishing a link which would permit recourse to an existing WTO mechanism, with the option of adopting the model already used in the field of intellectual property, that in which the WTO TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights) takes as a reference the fundamental obligations of the principal WIPO conventions (those of the Berne Convention for copyright and those of the Paris Convention for industrial property) and of the 1961 Rome Convention (administered jointly by ILO, UNESCO and WIPO). While not without interest, this normative solution nevertheless seems to rein in cultural diversity too much. Besides which, it would be rather cumbersome because of the variety of cultural goods and services (or even educational, scientific and cultural services) which would have to be included.

(d) Protection of the diversity of cultural contents and artistic expressions

23. A new standard-setting instrument could also deal with protection of the diversity of cultural contents and artistic expressions reflected in cultural industries (essentially Articles 8 to 11 of the Declaration), which aspects appear to be particularly threatened by globalization. Such an instrument would thus be able to guarantee protection for cultural diversity within a variety of forms of expression of cultural activity. Such an instrument should promote a dynamic interaction among the different cultural contents and artistic expressions and between them and other closely related domains (multilingualism in relation to cultural expression, development of local contents, participation in cultural life, opportunities for access to multiple source cultures and through a variety of media, digital included). It should also ensure respect for the individual rights of creators and artists and facilitate the circulation of individuals, goods, services and knowledge linked to cultural activity while preserving stable areas of identity and creativity. The preservation of cultural diversity would thus be linked to the objectives of sustainable development and intercultural dialogue through the promotion of creative activity and artistic expression. Such an instrument should also ensure that each State is free to define its cultural policies, its cooperation agreements

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and its partnership initiatives in a global world. An effort should be made to avoid reopening the debate on the principles of cultural diversity, which are already set forth in the UNESCO Universal Declaration on Cultural Diversity, and to specify clearly the scope of the instrument, the elaboration of which should be undertaken in close cooperation with artistic circles and the prime movers of civil society. The main difficulties will arise from the nature of the commitment required of the States Parties and the degree to which they are constrained. It will also be vital to define precisely the relationship between this new instrument and the commitments assumed by States within other bodies and the choice of the mechanism for arbitration or the settlement of any difference which may arise. Without playing down the complexity of such a process, it may be said that the work already carried out on a substantial number of the topics to be addressed under this option would enable such an instrument to be prepared within a reasonable period of time.

IV. PROCEDURE FOR THE ADOPTION OF SUCH AN INSTRUMENT BY THE GENERAL CONFERENCE

24. In accordance with the relevant provisions of the Rules of Procedure concerning recommendations to Member States and international conventions covered by the terms of Article IV, paragraph 4, of the Constitution, the Board is invited to make observations on this preliminary study and to consider the desirability of placing on the agenda of the 32nd session of the General Conference an item concerning the proposal to regulate the question of cultural diversity internationally by means of an international convention or a recommendation. Should the Executive Board decide to include the question in the provisional agenda of the General Conference, the Director-General, in accordance with Article 5 of the above-mentioned Rules of Procedure, will communicate to Member States a copy of the preliminary study and the text of the Executive Board’s observations and decisions thereon 70 days before the opening of the 32nd session of the General Conference, that is by mid-July 2003.

25. Pursuant to Article 6 of the above-mentioned Rules of Procedure, the General Conference will be invited, after examining this study and the Executive Board’s observations thereon, to decide whether the question should be regulated internationally and, if so, whether that regulation should take the form of a convention or a recommendation. Should the General Conference at its 32nd session (October 2003) decide that the question of cultural diversity must be regulated by an international convention, a preliminary report, possibly accompanied by a preliminary draft convention, could be submitted to the General Conference at its 33rd session in the autumn of 2005. The Rules of Procedure stipulate in fact that the General Conference shall not vote on the adoption of a draft convention or recommendation before the ordinary session following that at which it has taken the decisions on the desirability and nature of the instrument. The General Conference may also decide at its 32nd session to defer such decisions to a future session and to instruct the Director-General to report to it on the desirability of regulating on an international basis the question dealt with in the proposal (Article 7 of the Rules of Procedure).

26. In the light of the foregoing, the Executive Board may wish to adopt a decision along the following lines:

The Executive Board,

1. Recalling the adoption of the UNESCO Universal Declaration on Cultural Diversity by the General Conference at its 31st session (31 C/Resolution 25, Annexes I and II),

2. Recalling also the Main Lines of the Action Plan for the implementation of the Declaration in which Member Sates committed themselves to “deepening the

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international debate on questions relating to cultural diversity, particularly in respect of its links with development and its impact on policy-making, at both national and international level; taking forward notably consideration of the advisability of an international legal instrument on cultural diversity” (Annex II, paragraph 1),

3. Having examined the preliminary study of the technical and legal aspects of the desirability of a standard-setting instrument on cultural diversity contained in document 166 EX/28,

4. Decides to place this item on the provisional agenda of the 32nd session of the General Conference;

5. Invites the Director-General to submit to the General Conference at its 32nd session the above-mentioned report relating to the preliminary study on the desirability of a new standard-setting instrument on cultural diversity and the Executive Board’s observations and decisions thereon;

6. Recommends to the General Conference that it take a decision to continue action aimed at drawing up a new standard-setting instrument on cultural diversity and to determine the nature of that instrument.

166 EX/28 Annex

ANNEX

INTERNATIONAL INSTRUMENTS RELATING TO CULTURAL DIVERSITY*

1. INTERNATIONAL INSTRUMENTS RELATING TO HUMAN RIGHTS AND TO PLURALISM

1.1 Instruments adopted by the United Nations (N.B. The United Nations are States, as distinct from the United Nations Secretariat)

Universal Declaration of Human Rights (1948)

International Covenant on Economic, Social and Cultural Rights (1966)

International Covenant on Civil and Political Rights (1966)

International Convention on the Elimination of All Forms of Racial Discrimination (1966)

International Convention on the Elimination of All Forms of Discrimination Against Women (1979)

Recommendation on Participation by the People at Large in Cultural Life and Contribution to It (1976)

Algiers Declaration on the Rights of Peoples (1976)

Declaration on the Elimination of all Forms of Intolerance and Discrimination based on Religion and Belief (1981)

Declaration on the Human Rights of Persons who are not Nationals of the Country in which they Live (1985)

Universal Declaration on the Right to Development (1986)

International Convention on the Rights of the Child (1989)

Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992)

Vienna Declaration and Programme of Action (1993)

Beijing Declaration and Platform for Action (1995)

Durban Declaration and Programmes of Action (2001)

1.2 Instrument being drawn up by the United Nations

Declaration on the Rights of Indigenous People (1994)

1.3 Instruments adopted by UNESCO

Convention against Discrimination in Education (1960)

* The international instruments below have been listed in chronological order for ease of reading.

166 EX/28 Annex – page 2

Declaration of the Principles of International Cultural Cooperation (1966)

Recommendation concerning Education for International Understanding, Cooperation and Peace and Education relating to Human Rights and Fundamental Freedoms (1974)

Recommendation on Participation by the People at Large in Cultural Life and Contribution to It (1976)

Recommendation on the Development of Adult Education (1976)

Declaration on Race and Racial Prejudice (1978)

Recommendation on Cultural Identity (1982)

Convention on Technical and Vocational Education (1989)

Delhi Declaration and Framework for Action (1993)

Declaration and Integrated Framework of Action on Education for Peace, Human Rights and Democracy (1994)

Hamburg Declaration on Adult Learning (1997)

Declaration of Principles on Tolerance (1997)

Declaration on the Responsibilities of the Present Generations Towards Future Generations (1997)

UNESCO declarations on the promotion of independent and pluralistic media (1991-1997)1

World Declaration on Higher Education for the Twenty-First Century (1998)

1.4 Instrument being drawn up by UNESCO

Recommendation on the Promotion and Use of Multilingualism and Universal Access to Cyberspace

2. INTERNATIONAL INSTRUMENTS RELATING TO CULTURAL DIVERSITY AND CREATIVITY

Universal Copyright Convention (1952, revised in 1971)

Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961)2

1 Declaration of Windhoek (1991), Declaration of Alma Ata (1995), Declaration of Santiago (1995), Declaration

of Sana’a (1997) and Declaration of Sofia (1997). 2 The scope of these two conventions, to which there are 98 (1952 Universal Convention), 64 (revised Universal

Convention) and 70 (Rome Convention, jointly administered by WIPO and ILO) States Parties respectively, was updated recently when the World Trade Organization (WTO) adopted the 1994 Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) and when the World Intellectual Property Organization adopted the Internet Treaties (1996).

166 EX/28 Annex – page 3

Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 and Protocols of 1954 and 1999)

Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970)

Convention for the Protection of the World Cultural and Natural Heritage (1972)

Florence Agreement on the Importation of Educational, Scientific and Cultural Materials (1950) and the annexed Nairobi Protocol (1976)3

Recommendation concerning the Status of the Artist (1980)

Recommendation on the Safeguarding of Traditional Culture and Folklore (1989)

Recommendations of the Charter of Courmayeur (1992)

Convention on the Protection of the Underwater Cultural Heritage (2001)

2.1 Instruments being drawn up by UNESCO

Convention on the safeguarding of the intangible cultural heritage

Charter on the preservation of the digital heritage

Declaration concerning the Intentional Destruction of Cultural Heritage

3 Accessions to this binding standard-setting instrument are being received regularly and there are now 97 States

Parties. Under this Agreement, contracting States undertake not to levy customs duties or other taxes on imported books, newspapers, magazines and other printed publications (Annex A). This also applies to cultural property listed in Annexes B (works of art), C (visual and auditory materials), D (scientific instruments or apparatus for use in education) and E (educational material for the blind). Although there is no discriminatory treatment whatever as to the content and end use of books and printed publications, the cultural items listed in Annexes B to E are required to be educational, scientific or cultural in character to be eligible for the advantages granted under the Agreement. An advisory opinion may be sought from the Director-General of UNESCO in that regard in the event of a dispute or differences of interpretation. Annexes A, B, C, D and E, together with the annexed Protocol containing the text of the reservation entered by the United States as a condition of its accession to the treaty, are an integral part of the Agreement in accordance with its Article XVII. (That reservation concerns the option of suspending in whole or in part the commitments undertaken by that State under the Agreement if the rise in imports of those cultural items into its territory causes or threatens to cause serious prejudice to national producers of similar or directly competing products.) The Florence Agreement was updated 26 years later through the adoption of the Nairobi Protocol (1976), which, in response to the concerns of the developing countries and their need to have access to education, science and culture, removed the discrimination established in the Florence Agreement in respect of works of art and collectors’ pieces (Annex B), scientific equipment (Annex D) and articles for the blind (Annex E) on the grounds of content, nature and end use. Discrimination in respect of the educational, scientific or cultural character or end use of films and sound or audiovisual recordings (Annex C) is also ruled out by the Protocol, although reservations may be expressed in respect of such cultural property and the new items listed in the Nairobi Protocol, such as sports equipment (Annex F), musical instruments (Annex G) and material and machines used for the production of books (Annex H), at the time of accession. Reservations may nonetheless be revoked at any time. On the other hand, the option of formulating a reservation in order to protect national industries, along the lines expressed by the United States of America, which is a Party to the Florence Agreement, is, as previously indicated, open only to the developing countries. Both the Florence Agreement and its Nairobi Protocol refer implicitly to the most favoured nation (MFN) concept, since contracting States are required to respect this obligation vis-à-vis other contracting States.

32 C/52 Appendix 2

APPENDIX 2

166 EX/DECISION 3.4.3

The Executive Board,

1. Recalling the adoption of the UNESCO Universal Declaration on Cultural Diversity by the General Conference at its 31st session (31 C/Resolution 25 and Annexes I and II),

2. Recalling also the main lines of an action plan for the implementation of the Declaration in which Member States committed themselves to “deepening the international debate on questions relating to cultural diversity, particularly in respect of its links with development and its impact on policy-making, at both national and international level; taking forward notably consideration of the advisability of an international legal instrument on cultural diversity” (31 C/Resolution 25, Annex II, paragraph 1),

3. Having examined the preliminary study on the technical and legal aspects relating to the desirability of a standard-setting instrument on cultural diversity contained in document 166 EX/28,

4. Decides to place this item on the provisional agenda of the 32nd session of the General Conference;

5. Invites the Director-General to submit to the General Conference at its 32nd session a report relating to the preliminary study on the desirability of a new international standard-setting instrument on cultural diversity and the Executive Board’s observations and decisions thereon;

6. Further invites the Director-General to include in the above-mentioned report a reference to the relevant international instruments;

7. Recommends to the General Conference that it take a decision to continue action aimed at drawing up a new international standard-setting instrument on cultural diversity and to determine the nature of that instrument.

32 C/52 Appendix 3

APPENDIX 3

OBSERVATIONS BY THE EXECUTIVE BOARD CONCERNING THE PRELIMINARY STUDY ON THE TECHNICAL AND LEGAL

ASPECTS RELATING TO THE DESIRABILITY OF A STANDARD-SETTING INSTRUMENT ON CULTURAL DIVERSITY

1. At its 166th session, the Executive Board of UNESCO decided to place the question of the desirability of a standard-setting instrument on cultural diversity on the provisional agenda of the 32nd session of the General Conference. Most speakers stressed the importance they attached to cultural diversity and many of them recognized the need for a new instrument which would enable a tie to be established between the preservation of cultural diversity and human, social, cultural and economic development objectives. The majority congratulated the Director-General on the quality of the preliminary study and on the Organization’s commitment to the issue which is at the core of its mandate.

2. The majority of speakers stressed that the UNESCO Universal Declaration on Cultural Diversity, adopted by acclamation in 2001, constituted a basic ethical frame of reference shared by all Member States. Some Members of the Board endorsed the preparation by UNESCO of a new binding instrument, although a few of them did not wish at that stage to specify the form it should take. However, the majority of those who had endorsed the idea of a new instrument considered that it could take the form of an international convention. Other Board Members nevertheless wanted a more comprehensive analysis to be made of the scope of application and of the specific cultural fields which might benefit from standard-setting action by UNESCO before taking a position on the desirability and nature of such action.

3. At the end of the debate, of the four options proposed in document 166 EX/28, option (d) set out in paragraph 23 thereof relating to protection of the diversity of cultural contents and artistic expressions had garnered the strongest support. That option, which would fill a legal void in the view of its supporters, would guarantee protection for cultural diversity within a variety of forms of expression of cultural activity, in particular cultural industries. Some Board Members took the view that aspects relating to cultural rights, and in particular those of indigenous populations, and multilingualism, should also be regarded as an integral part of cultural diversity. A number of speakers stressed that cultural diversity was, in their view, the guarantee of the harmonious coexistence, worldwide, of different cultures and their expressions, and that it should on no account be used as a pretext for cultural isolationism or sectarian violence. A new instrument should benefit all States in terms of development, social cohesion and intercultural dialogue. UNESCO was therefore invited to ensure that the question of the instrument was addressed by all the Member States from their various perspectives.

4. While recognizing that the elaboration of this new instrument on cultural diversity represented a complex and challenging task for the Secretariat, many Board Members regarded the task as urgent, expressing the hope that the instrument could be adopted by the General Conference at its 33rd session in 2005. They considered that the sizeable international standard-setting corpus and the finalization of the international convention for the safeguarding of the intangible cultural heritage should provide a useful and complementary conceptual foundation for its elaboration.

5. In reflecting on an instrument which would relate to protection of the diversity of cultural contents and artistic expressions, several speakers wondered if enough progress had been made in the debate on the question to envisage the drafting of a new instrument. Many Members of the Board also referred to the need to ensure a proper linkage between the new instrument contemplated

32 C/52 Appendix 3 – page 2 by UNESCO and the relevant international instruments, emphasizing that the new instrument should not be incompatible with other international commitments made by their governments in other forums, in particular the World Trade Organization (WTO). In that regard, several delegates called for an analysis of the interrelationship between the new instrument and existing relevant instruments; however, the debate ended with the conclusion that reference would be made only to the existing relevant instruments. The Secretariat was therefore requested to present additional information on the subject in the present document (Appendix 4).

32 C/52 Appendix 4

APPENDIX 4

Reference to other relevant international instruments

1. The Executive Board of UNESCO, under paragraph 6 of 166 EX/Decision 3.4.3, invited the Director-General to include in the present document “a reference to the relevant international instruments”. This request responded to two concerns: to ensure that a new instrument would not relate to a field already covered by existing instruments, and that it would be fully in harmony with the overall legal environment, in particular that of the World Trade Organization (WTO) (see paragraph 11 of this appendix for the list of relevant binding and non-binding, regional and global international instruments).

2. Globalization has thrown a powerful spotlight on the interdependencies and connections between traditionally separate fields, and thereby revealed the rather fragmentary nature of international law. This fragmentation seems set to increase in view of the various standard-setting processes embarked upon by various international bodies in fields as varied as the environment, trade, culture, food and currency. A number of bodies are simultaneously endeavouring to address new challenges that have emerged in this way, on the basis of their own procedures and according to their own field of specialization and objectives. That makes coordination among organizations and jurisdictions all the more necessary in order to achieve more effective international regulation.

3. Thus, a cultural product or service may be bought and sold, an economic activity may have an impact on the environment and the level of education has an effect on economic development. A field may be covered by different types of standards with different aims and objectives. For example, the issue of linguistic diversity is dealt with by instruments adopted by the United Nations, the European Union and the International Organization of the Francophonie; the individual rights of creators and artists are dealt with by bodies as diverse as UNESCO, the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO); the intellectual property aspects of the intangible heritage are dealt with by WIPO whereas the aspects relating to the safeguarding of the heritage are dealt with by UNESCO. If a body decides to address a given issue as part of its standard-setting work, that does not then mean that other bodies should refrain from dealing with the same question within the scope of their mandate. Indeed, they may decide to use the work already carried out by other bodies. For instance, WTO has not hesitated to refer to standards developed elsewhere on certain questions, either for reference purposes (for example, food and health standards) or on a mandatory basis (the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights refers to a number of conventions managed by WIPO). A similar approach has been adopted in relation to standard-setting instruments concerning the environment. In addition to the conventions adopted by UNESCO (the 1971 Ramsar Convention on Wetlands, the 1972 Convention for the Protection of the World Cultural and Natural Heritage), there is the 1992 Convention on Biological Diversity. WTO dealt with trade aspects of that issue at its Doha Ministerial Conference in 2001 despite the existence of earlier multilateral environmental agreements.

4. So, although cultural contents and artistic expressions are not necessarily reflected in cultural industries and therefore do not always enter the field of trade, it is nevertheless the case that they are in large measure conveyed by cultural goods and services with a global circulation. This is why UNESCO and WTO may find themselves examining one and the same issue within their respective spheres of interest, in this instance, cultural goods and services. Nevertheless, the application of trade regulations in this field rarely takes into account in the context of globalization concerns relating to culture.

32 C/52 Appendix 4 – page 2

5. UNESCO’s role in this respect consists in particular of supporting and ensuring access for all, the quality and diversity of contents, within and between States, and the participation of all States without exclusion in international debates. WTO aims to ensure the broad dissemination of such services by liberalizing the market and improving the quality of what is provided on the basis of free competition. It should therefore be stressed that, although their approach differs, UNESCO and WTO share the same objective: ensuring everybody can enjoy the benefits of globalization, in particular in the field of culture, with a view to structuring the partnership between the public sector, private sector and civil society.

6. The work carried out by the two organizations in the field of culture has precedents, which go back some time. The original text of the General Agreement on Tariffs and Trade (GATT), adopted in 1947, stipulated that any contracting party could maintain “screen quotas [that] require the exhibition of cinematograph films of national origin during a specified minimum proportion of the total screen time actually utilized” (Article IV). Carried over into the 1994 Uruguay Round Agreement, this provision on “quotas” was included since such restrictive regulations were perceived to relate to national cultural policies rather than to economics and trade. The particular interest of the clause resides in its explicit acknowledgement of the specific nature of films as products in international trade. However, the only provision of the 1994 Agreement which directly deals with the trade in cultural goods is Article XX(f), which permits measures related to the protection of national treasures of artistic, historic and archaeological value. Outside of those two exceptions, GATT and WTO treat cultural products in the same way as any other commercial goods. The General Agreement on Trade in Services (GATS) contains no specific clause concerning culture or cultural products, even though cultural services benefit from certain provisions which allow the maintenance of national measures that would otherwise be incompatible with the basic commitment of the parties to grant most favoured nation treatment, or enable the maintenance in sectors where no specific commitment to liberalization has been made of measures incompatible with national treatment or which restrict access to domestic markets. It must however be noted that there is no single standardized classification system and no common definition to describe commercialized cultural services, which points to the very complexity of the problems surrounding cultural contents and artistic expressions as regards their implications for trade.

7. UNESCO, for its part, has developed a number of instruments on the protection of the cultural and natural heritage, the status of the artist, copyright and neighbouring rights, and also on the import of educational, scientific and cultural goods by encouraging their free circulation (1950 Florence Agreement and 1976 Nairobi Protocol). As yet, it has not developed a binding instrument to protect and promote cultural diversity through cultural contents and artistic expressions. This gap, which has inevitably been underscored by its Member States on several occasions, would be filled by the projected new instrument. Indeed, many bodies have expressed this concern, including the Council of Europe, the European Union, the International Organization of the Francophonie, the Organisation for Economic Cooperation and Development (OECD), the African Union and MERCOSUR, by issuing opinions and statements in this respect. These represent considerable steps forward, but are not however binding and international in nature, which is now the aim.

8. If UNESCO should decide to consider a new instrument, it should then ensure that international cooperation is organized so as to promote cultural diversity without impeding the circulation of cultural goods and services, thereby helping, as stipulated in Article I of its Constitution to “promote the free flow of ideas by word and image”. These two principles should not be regarded as contradictory or mutually exclusive, but as complementary, contributing each in its own way to fair, sustainable development and a sharing of the benefits of globalization.


9. A new instrument would have the vocation of providing a basis for and guaranteeing the possibility of using a number of means of action rather than of imposing their use, so that it could not itself lead to contradictions. As States do not have the same regional and international commitments, or the same domestic policies, they may be confronted by a contradiction without that being the fault of the instrument itself or something which would compromise its utility. One or more clauses stipulating how to resolve any contradictions could moreover be envisaged in the new instrument. The States Parties should ensure that agreements on trade and culture are mutually reinforcing, in the best interests of the public and private sectors and civil society. With regard to the settlement of any disputes, current developments in international law demonstrate that the existence of a binding settlement mechanism helps to ensure the effectiveness of international instruments.

10. It is important to note the marked interest expressed by a majority of developing countries in the elaboration of a new instrument by UNESCO. While lacking developed cultural industries, these countries nevertheless do not wish to forgo future capacities in that regard with a view to gaining access to international outlets for their works. Commercial implications are not at this point an overriding aspect of their interest. This illustrates a key aspect of cultural goods and services, linked to their dual economic and cultural nature, that is, that they convey meaning and identity. The flourishing of cultural diversity at the world level is perceived to be the guarantor of the harmonious coexistence of different cultures and their expressions, even when those cultures are not engaged in global trade competition. If UNESCO does start working towards a new instrument, it will therefore ensure that the question is addressed by all Member States, from their individual perspectives, with the participation, cooperation and support of all, including developing countries.

11. The following list illustrates, with reference to six principle domains, the variety of entities and the nature of the relevant instruments in force:1

(i) promotion of linguistic diversity in cultural industries;

(ii) status of the artist;

(iii) circulation of persons, goods, services and knowledge linked to cultural activity;

(iv) culture as a component of development;

(v) dialogue among cultures and international cultural cooperation;

(vi) cultural policies.

(i) Promotion of linguistic diversity in cultural industries

• International Covenant on Civil and Political Rights, resolution 2200A (XXI) of the United Nations General Assembly, 16 December 1966. This instrument affirms that in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities may not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language (Article 27).

1 This list and the accompanying comments are not exhaustive. The list features the most relevant binding

(charters, conventions, protocols, treaties) and non-binding international instruments (declarations, resolutions, recommendations, plans of action, principles, guidelines), both regional and worldwide in scope, and thus complements the annex to document 166 EX/28. The comments are structured around six main themes, so the same instrument may be analysed more than once. This chronological presentation reveals both the density and the diversity of the path to international standard-setting action.


• Cultural Charter for Africa, OAU, 1976. In this instrument, the States Parties recognize the imperative need to develop African languages which will ensure their cultural advancement and accelerate their economic and social development; to that end each state may choose one or more languages (Articles 17 and 18).

• Council of Europe, Recommendation 1043 (1986) on Europe’s linguistic and literary heritage. This instrument invites the Committee of Ministers to defend and encourage multilingualism in Europe, both in written material (whether in book or other form) and the audiovisual media, and to support through appropriate measures the development of the language industries with due respect for Europe’s linguistic diversity (points (a) and (d)).

• Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, United Nations General Assembly, resolution 47/135 of 18 December 1992. The States Parties pledge to protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and to encourage conditions for the promotion of that identity, including the possibility of learning their mother tongue or having instruction in their mother tongue (Article 1, Article 4).

• Council of the European Union, Decision of 21 November 1996 on the adoption of a multi-annual programme to promote the linguistic diversity of the Community in the information society (96/664/EC). The States Parties consider that the advent of the information society provides industry and in particular the language industry with new prospects for communication and trade on European and world markets which are marked by a rich linguistic and cultural diversity.

• European Charter for Regional or Minority Languages (1998), Council of Europe (STE 148). This treaty provides for the protection and promotion of the historical regional or minority languages of Europe. It was adopted, on the one hand, in order to maintain and to develop Europe’s cultural traditions and heritage, and on the other, to respect an inalienable and commonly recognised right to use a regional or minority language in private and public life.

• Proposal for a decision of the European Parliament and of the European Council – European Year of Languages 2001 (8 June 2000). In the preamble, the States of the Union affirm that cultural diversity is and will remain an essential element of the European heritage.

• Oslo Recommendations Regarding the Linguistic Rights of National Minorities (CSCE, 1998). The parties clarify the definition of the linguistic rights of minorities.

• Council of Europe, Recommendation No. R (98) 6 of the Committee of Ministers to Member States concerning modern languages. The States Parties are invited, in accordance with their constitutional set-up, national or local circumstances and their education system, to use every available means to implement education and cultural policies in the domain of languages.

• International Organization of the Francophonie: Final Declaration of the Moncton Summit (1999). The States Parties affirm that linguistic plurality and cultural diversity are features that have to be recognized for their value.


• Council of Europe, Declaration on cultural diversity (2000). Member States are called upon to examine ways of sustaining and promoting cultural and linguistic diversity in the new global environment, at all levels.

• International Organization of the Francophonie, Beirut Declaration (2002). The States Parties reaffirm their intention to promote multilingualism.

(ii) Status of the artist

• International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (referred to as the Rome Convention, 1961, Articles 1, 2, 3, 4, 5, 6, 7).

• Universal Copyright Convention (revised at Paris in 1971, Articles 1, 2, 3) .

• Berne Convention for the Protection of Literary and Artistic Works (revised at Paris in 1971, Articles 3, 4, 5).

• Convention relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (Brussels Convention, 1974, Articles 1, 2).

• Recommendation on Participation by the People at Large in Cultural Life and their Contribution to it, UNESCO, Nairobi, 1976.

• Council of Europe, European Convention relating to Questions on Copyright Law and Neighbouring Rights in the Framework of Transfrontier Broadcasting by Satellite, 1991.

• Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms (Geneva, 1991, Articles 1, 2, 7).

• Council of Europe, Recommendation No. R (94) 3 of the Committee of Ministers to Member States on the promotion of education and awareness in the area of copyright and neighbouring rights concerning creativity, 1994.

• Agreement on Trade-Related Aspects of Intellectual Property Rights adopted by the World Trade Organization, 1994.

• Agreement on the Internet Treaties adopted by the World Intellectual Property Organization, 1996, updating some aspects of previous conventions.

• Recommendation concerning the Status of the Artist, UNESCO, Belgrade, 1980.

• Council of Europe, Recommendation Rec (2001) 7 of the Committee of Ministers to Member States on measures to protect copyright and neighbouring rights and combat piracy, especially in the digital environment.

• Council of Europe, Recommendation Rec (2002) 7 of the Committee of Ministers to Member States on measures to enhance the protection of the neighbouring rights of broadcasting organizations.


(iii) Circulation of persons, goods, services and knowledge linked to cultural activity

• Agreement for Facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific and Cultural Character, UNESCO, Beirut, 1948.

• Agreement on the Importation of Educational, Scientific and Cultural Materials (Florence Agreement, 1950) and the Nairobi Protocol, 1976.

• OECD Code of Liberalisation of Current Invisible Operations, 1961. The code covers a range of services including audiovisual services which are subject to special regulations specifically authorizing the setting of quotas for programmes and production subventions.

• Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 1970. This involves taking account of new tools for the circulation of literary, scientific and artistic works in order to institute new rules of the game for the flow of goods and services, economies of scale and new technologies.

• Recommendation concerning the International Exchange of Cultural Property, UNESCO, Nairobi, 1976.

• Council of Europe, Recommendation 1067 (1987) on the cultural dimension of broadcasting in Europe.

• European Convention on Transfrontier Television (STE-132, 1989, entered into force in 1993).

• Protocol amending the European Convention on Transfrontier Television (STE-171, 1998).

• GATT (1947), Article IV of 1994 on Special Provisions relating to Cinematograph Films. This article stipulates that if any contracting party establishes or maintains internal quantitative regulations relating to exposed cinematograph films, such regulations shall take the form of screen quotas … over a specified period of not less than one year … or the equivalent thereof.

• NAFTA (United States-Canada-Mexico, 1994). Article 2106 and Annex 2106 on exemption relating to the measures concerning cultural industries.

• General Agreement on Trade in Services (GATS, 1995). Article II (Most-Favoured-Nation Treatment), Article XVI (Market Access) and Article XVII (National Treatment).

• European Union, Council Resolution of 17 December 1999 on the promotion of the free movement of persons working in the cultural sector. This instrument fosters free movement and aims at the mobility of artists and other people who are working, studying or being trained in the cultural sector.

• European Union, Council Resolution of 8 February 1999 on fixed book prices in homogeneous cross-border linguistic areas (1999/C42/02).

(iv) Culture as a component of development

• Final Declaration adopted by the World Conference on Cultural Policies, Mexico City, (1982).


• Declaration on the Right to Development, adopted by the United Nations General Assembly, resolution 41/128 of 4 December 1986.

• UNESCO, World Commission on Culture and Development, actions proposed in the report: Our creative diversity, 1995.

• UNESCO, Intergovernmental Conference on Cultural Policies for Development: Stockholm Action Plan (March-April 1998). According to the Plan, the essential aims of cultural policy are to establish objectives, create structures and secure adequate resources in order to create an environment conducive to human fulfilment.

• United Nations General Assembly resolution 53/184: Cultural Development, 1998.

• United Nations General Assembly resolution 55/192: Culture and development, 2000.

• Cotonou Agreement between the European Union and the African, Caribbean and Pacific Group of States (ACP) (23 June 2000), replacing the Lomé Agreement.

• Council of Europe, Declaration on cultural diversity, 2000.

• International Organization of the Francophonie, third Ministerial Conference on Culture, Cotonou Declaration, 2001.

• International Network on Cultural Policy (INCP), Cape Town Statement, fifth annual meeting of the Ministers of the International Network on Cultural Policy, October 2002.

• United Nations, Report of the World Summit on Sustainable Development, Johannesburg, Plan of Implementation, Chapter 1, resolution 2, annex (September 2002).

• United Nations General Assembly resolution 57/249: Culture and development, 2002.

• International Organization of the Francophonie, Beirut Declaration, 2002.

(v) Dialogue among cultures and international cultural cooperation

• Cultural Treaty of the Arab League, November 1946.

• Organization of American States, American Declaration of the Rights and Duties of Man, art. XIII, (1948).

• European Cultural Convention (STE No. 018, 1954).

• Convention for the Promotion of Inter-American Cultural Relations, 1954.

• Treaty establishing the European Community, Rome, 1957, and Article 151 of the Amsterdam Treaty, 1997 (previously Article 128), which stipulates that action by the Community shall be aimed at encouraging cultural cooperation between Member States.

• UNESCO, Declaration of the Principles of International Cultural Cooperation, 1966.

• ASEAN, Bangkok Declaration, 1967.

• Treaty establishing the Caribbean Community, 1973.


• OAU, Cultural Charter for Africa, 1976. This instrument recognizes the “need to take account of national identities, cultural diversity being a factor making for balance within the nation and a source of mutual enrichment for various communities” (Article 3).

• ASEAN, Declaration of Concord of the Association of South-East Asian Nations, 1976.

• Treaty Establishing the Common Market for Eastern and Southern Africa (COMESA), 1983.

• Charter of the South Asian Association for Regional Cooperation (SAARC), 1985.

• OAS, Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, (Protocol of San Salvador), 1988.

• Central American Common Market, Tegucigalpa Protocol, 1991.

• Council of Europe, Recommendation 1216 (1993) on European Cultural Cooperation.

• Declaration of the Tenth SAARC Summit, 1998.

• Convention Establishing the Association of Caribbean States, 1994. The Convention’s preamble calls on the Member States to initiate a new era of cooperation and cultural relations

• Council of Europe, Recommendation 1265 (1995) on enlargement and European cultural cooperation.

• Codification of the Andean Subregional Integration Agreement, Cartagena Agreement, 1996.

• Protocolo de Integración Cultural de Mercosur, MERCOSUR/CMC/DEC NRO. 11/96. In this instrument, the States Parties pledge to promote cooperation and exchanges between their respective cultural institutions and their representatives (Article 1, para. 1)

• International Organization of the Francophonie, Final Declaration of the Moncton Summit, 1999.

• Decision of the European Parliament and of the Council of 14 February 2000 establishing the Culture 2000 programme.

• Council of Europe, Resolution 1313 (2003): Cultural cooperation between Europe and the south Mediterranean countries.

(vi) Cultural policies

• United Nations, Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, General Assembly resolution 2625 (XXV), 1970.

• General Recommendation of the Intergovernmental Conference on Cultural Policies in Europe, Helsinki, 1972.

• Declaration of the Intergovernmental Conference on Cultural Policies in Asia, Yogyakarta, 1973.


• Declaration of the Intergovernmental Conference on Cultural Policies in Africa, Accra, 1975.

• Recommendation on Participation by the People at Large in Cultural Life and their Contribution to it, Nairobi, 1976.

• Declaration of Bogotá, Intergovernmental Conference on Cultural Policies in Latin America and the Caribbean, 1978.

• Mexico City Declaration on Cultural Policies and Recommendations, World Conference on Cultural Policies, UNESCO, MONDIACULT, Mexico City, 1982. The conference reaffirmed that the following principles should govern cultural policies: cultural identity, cultural dimension of development, cultural heritage, artistic and intellectual creation.

• Council of Europe, Recommendation 1059 (1987) on the economics of culture, 1987.

• Action Plan on Cultural Policies for Development, Intergovernmental Conference on Cultural Policies for Development, Stockholm, 1998.

• Council of Europe, Declaration on cultural diversity, 2000.

• INCP (International Network on Cultural Policy), Santorini Statement, 2000.

• INCP, Lucerne Statement, 2001.

• International Organization of the Francophonie, third Ministerial Conference on Culture, Cotonou Declaration, 2001.

• International Organization of the Francophonie, ninth Conference of Heads of State and Government, Beirut Declaration, 2002.

• Council of Europe, Recommendation Rec (2003) 9 of the Committee of Ministers to Member States on measures to promote the democratic and social contribution of digital broadcasting.

Documents

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