Towards an International Agreement on the Protection of Cultural Diversity

By Professor Kader Asmal

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Apartheid demonized and marginalised the cultures of the vast majority of the people of South Africa. Colonialism, built as it was on the assumption of extending ‘ civilisation’to the indigenous peoples of Africa denied, any real place for free artistic expression in virtually every area of life. Both systems explicitly assumed the superiority of the life experiences of the coloniser.
Diversity can only flourish in conditions of freedom and the creation of public space for the recognition of the dignity of people and the expression of solidarity.
It was because of our experience in drafting the constitutions of a free South Africa that I accepted the invitation from member states of UNESCO to allow my name to go forward, in September 2004, as president of the inter-governmental committee of experts to draft a Convention on the Protection and Promotion of the Diversity of Cultural Expressions.
Our constitution built on the proud claim of the Freedom Charter, adopted in 1955 that, ‘The Doors of hearing and Culture Shall be Opened’, with the specific understanding that the flourishing of culture required the abolition of racism and the sentiment also reflected in the policies of UNESCO, that ‘… the cultural treasures of mankind shall be open to all, by free exchange of books, ideas and contacts of other lands’.
This form of Internationalism, which drew on the traditions of the African National Congress, of a rights-based approach, in a country where the majority where virtually objects of the law, is further reflected in the constitutional provisions relating to dignity (‘Everyone has inherent dignity and to have the right to their dignity respected and protected’), a major quality clause, the right to use their language and to participate in cultural life, and, most importantly, freedom of expression.
This was my inspiration.
The background to this Convention – which breaks new grounds and creates enormous opportunities for Africa for the further development of our cultural resources – notes the adoption of the seminal Universal Declaration as Cultural Diversity by the UNESCO General Conference in 2001 and the Declaration’s identification of cultural diversity as ‘the common heritage of mankind’. It also strongly supported the link between cultural diversity and human rights, the need for dialogue between peoples and the development of culture as a renewable resource.
The Declaration, while extremely important, is not a normative document and did not relate to the issue as to how to protect and enhance what I call the ‘products’of cultural expression.
To meet this gap, the General Conference at its 32nd session in 2003 adopted a resolution concerning ‘the protection of the diversity of cultural contents and artistic expressions’and rejected, rightly, the proposal for a comprehensive instrument on cultural rights.
The Director General of UNESCO subsequently requested a group of experts to draft a preliminary text which formed the basis for discussion and negotiation by the member states (together with organs of civil society and inter-governmental bodies) in September 2005. The remarkable aspect was of this process was that the member states were able to conclude their deliberations in the space of less than nine months and were able to propose a real draft convention to the General Conference of UNESCO in June 2005. This Convention was adopted in October, 2005.
It is necessary to interrogate the reasons for this desire for a new convention to cover an area previously untouched by any international organisation.
First, there has been a general feeling that the special nature of cultural goods has not been generally recognised, especially in bilateral and regional trade agreements. The lapsing of the ‘cultural exemption rule’approved by the World Trade Organisation and which applied until 2004 and was then extended to 2006, would leave government-sponsored measures vulnerable to complaints, and without any legal grounds for their defence. This becomes even more significant as the powerful states are inducing more vulnerable states to enter agreements because of the difficulties concerning the completion of the Doha Round.
The response to this development was to ensure that cultural goods and services should be fully covered under WTO and regional and bilateral agreements.
The second anxiety concerned the uneven aspect of benefits under globalization. The quantum leap in information technology has made it possible for multi-national broadcasting and electronic companies to invest and control news, cinema and other programmes and in a market economy, to gobble up native companies leading to virtual monopolies in some areas. The effect of such concentration of ownership of television, radio and the cinema, threatens cultural diversity by inhibiting pluralism.
Third, free-trade in services and in cultural goods leads to greater homogeneity in the world and the imposition of values, life-styles and attitudes generated by the powerful, squeezing out and marginalizing the cultural expressions of a large part of humanity who do not have access to production and distribution facilities. In such a world, there is no parity of esteem, as the market does not subscribe to values.
States were no longer prepared to be bystanders but were pushing for an initiative which would open up a serious international debate and which would reconcile the UNESCO slogan concerning the ‘promotion of free flow of ideas by word and image, with the ‘protection and promotion of the fruitful diversity of cultures’. The South in particular felt strongly about the reminder in the Universal Declaration on Cultural Diversity that ‘culture is at the heart of contemporary debates about identity, social cohesion and sustainable development’. An enabling environment had to be built and sustained. Exchanges between states and communities could not flourish on the basis of unequal relations or by a free trade in markets.
The Convention, therefore is meant to ensure the maintenance of democratic space where diverse voices could really be heard. We all realised that the Convention raised issues which concerned developed and developing societies alike. Regardless of their economic, social or cultural, situation all members of the international community are affected by the challenges and opportunities posed by the diversity of cultural expressions.
One very important victory, therefore, was the recognition by the Convention of the nature and distinctiveness of cultural and intellectual goods contrasted with commercial goods.
The Convention recognises that members of minorities and indigenous peoples have a strong role to play in our efforts to promote cultural diversity, being seen as contributors to the world’s cultural wealth. But they have not benefited evenly. Ensuring their right to create and disseminate their cultural goods and services, their traditional expression, will benefit all of us, since they provide an important source of ideas and perspectives on humanity and the world at large. Women are not a minority but their creativity has often been ignored and they have often been limited to traditional crafts.
The Convention also recognises, uniquely, I feel, that an active solidarity is the only possible answer in order to face collectively these challenges and opportunities. Building an equitable partnership is a positive approach to bridge gaps and ensure a true free flow of cultural contents and artistic expressions coming from all over the world, and in particular from developing countries. Reciprocity of fights may be relevant in commercial trade, but not in the area covered by the draft Convention. Cultural content is indeed a central issue in this debate about culture, globalisation, diversity and dialogue. As a South African who has had to endure and fight apartheid, I am fully aware of how cultural products can be used to convey hatred and racism, and how the distinctive contribution of people – in traditional medicine, art, literature – is not only ignored but demonised. Light-hearted and entertaining cultural content can transmit the most odious things about others, and this is not simply a matter of political correctness, but concerns the fundamental question as to how we can learn to live with each other.
I turn now to another issue at the heart of this debate and that is, the idea of the preservation and promotion of diversity as a public good. This concern is placed against the growing context of privatisation and internationalisation of culture. Cultural production and dissemination progressively take place in the private domain and states are certainly not anymore the main suppliers of it – accepting that there was a period where they played that role of main providers. For the most part, culture transits today in the private domain. Now the question is: who defends public interest and public good – in this case diversity – if cultural and economic processes are entirely in private hands? In other words where to strike a balance between market forces and public interest?
This is a central issue addressed in the text of the Convention as presented by UNESCO. It is easier to see the role of the state as a provider of democratic space where cultural creation and dissemination can take place, regardless of its commercial nature or value. This means, for example, that public broadcasting systems are sustained as custodians of diversity. It also requires other forms of governmental support and regulation such as measures to strengthen the productive capacity of the creative sector, both domestically and internationally, encouraging cultural industries to grow.
This notion of diversity as a common property of humankind, is relatively new and deserves attention. However who are to be the custodians of such diversity remains to be seen. Furthermore, can the wider access to a range of cultural contents and artistic expressions be only satisfied by the action of governments only? And that leads me to the next point.
Who are we trying to help through this Convention? There seem to be three major stakeholder groups around this issue. To start with, governments which are taking up engagements under this new Convention. We already knew that governments had different views on this topic. But these were addressed at the Conference negotiations. Our challenge was to propose collectively a framework that would help them deal with the issues of culture, globalisation and diversity in an effective and collaborative way. This framework would help governments develop policies in the ever-changing landscape of media and culture. Behind governments are their citizens. Making it possible for all their citizens to be able to create as well as to have access to their own forms of cultural contents and artistic expressions and of that of others was a key objective of our endeavour. Finally the third group of stakeholders is that of the cultural professionals who make their living from their work in this area, be it as artists and creators, producers, manufactures or distributors.
From these conceptual factors, we must turn to the Convention itself and try to identify what its provisions may mean for not only for Africa, but also for the South. The political philosophy behind the Convention is sharply identified in the preamble which provides the backdrop to the Convention. The preamble refers to cultural diversity as a ‘defining characteristic of humanity’and as part of the ‘common heritage of humanity,’recognises diversity as a ‘ mainspring of sustainable development,’the necessity for democracy, the necessity to incorporate culture as a ‘strategic element in national and international development policies’, and the recognition of traditional knowledge as ‘a source of intangible and material wealth’.
Many of these ethical and political policies are reflected in the normative provisions of the Convention. Especially important is the recognition of the vulnerability of cultural expressions and the need to take measures to protect the diversity of cultural expressions including its contents where these may be ‘threatened by the possibility of extinction or serious impairment’.
The preamble recognises the special role of women, minorities, indigenous peoples, freedom of thought, expression and information and the role of education.
As far as intellectual property rights are concerned, there was much discussion on the extent to which the Convention in its binding provisions should acknowledge these and their importance. Some countries from the South referred to the negative aspects of the appropriation of intellectual property by the North, which often left vulnerable groups powerless and property-less, where their works were registered elsewhere. In the event, the matter was simply covered by the preamble which recognised ‘the importance of intellectual property rights in sustaining those involved in cultural creativity’. This debate will therefore continue unabated.
The objectives and guiding purposes of the Convention (Article 1) build on the preamble by reaffirming, for example, the link between culture and development, especially for developing countries and the need to support actions undertaken nationality and internationally ‘to secure recognitions of the value of this link, to strengthen international co-operation and to provide recognition to the ‘distinctive nature of cultural activities, goods and services as vehicles of identity, values and meaning’.
Some South American countries introduced the concept of ‘interculturality’, in order to develop interaction in the spirit of building bridges among people. The Convention accepts this concept, which is defined later as ‘the existence and equitable interaction of diverse cultures and the possibility of generating shared cultural expressions through dialogue and mutual respect’. This concept could have profound effect in encouraging co-operation nationally and, possibly, internationally in developing inter-cultural goods and services as a joint or common effort.
Article 2 of the Convention covers the guiding principles which determine the sphere of operation of the Convention. These nine such principles draw on and develop further the preamble. One such example is the relationship between human rights and fundamental freedom as a sine qua non for cultural diversity and the need to recognise the non-infringement of these rights when the Convention is invoked.
The issue of the rights of states to protect cultural expressions is put beyond doubt by reference to the principle of sovereignty where the Convention (Article 2.2) refers to ‘the sovereign right to adopt measures and policies to protect and promote the diversity of cultural expressions within their territory’. This right must be exercised in accordance with the Charter of the United Nations and the principles of international law.
There was some debate about the application of ‘protect’to the possibility of excluding goods and services from other countries, especially in the context of free trade. The definition of ‘protection’therefore gave rise to considerable discussion. The state parties accepted that states could, therefore, adopt measures aimed at the ‘preservation, safeguarding and enhancement of the diversity of cultural expressions’.
The principle of equal dignity and respect for all cultures is important in the context of recent attempts to posit the superiority of western traditions of culture and, especially, religion. From this unhappy approach which also tries to identify ‘core’values in certain countries faced by alleged danger from ‘alien’elements, the leap to a ‘clash of civilisations’is easily made. The Convention draws on the UNESCO Declaration and expands on it by laying down that the ‘protection and promotion of the diversity of cultural expressions presuppose the recognition of equal dignity of and respect for all cultures, including the culture of persons belonging to minorities and indigenous peoples’. The reference to ‘minorities and indigenous peoples’overrides the objections of some states that do not recognise the existence of such peoples!
The principle of international solidarity and co-operation is provided with concrete application in Article 12. The aim is to ‘enable countries, especially developing countries, to create and strengthen their means of cultural expression, including their cultural industries, whether nascent or established, at the local, national and international levels’.
For the South, this is one of the most significant gains of the whole convention process. Attention is drawn to the need to provide assistance to countries (especially developing countries: Article 17) and, without prejudice to the general principle, for countries where cultural expressions on their territories are at ‘risk of extinction, under serious threat or otherwise in need of urgent safeguarding (Article 8).
The Convention lists those areas where international co-operation is necessitated. There is no legal obligation to do so (this would be impossible to define) but states should ‘endeavour’to strengthen bilateral, regional and international co-operation to create ‘conditions conducive to the promotion of the diversity of cultural expressions’. This could be done through dialogue among states on cultural policies, enhancing public sector and management capacities in public sector institutions through professional exchanges and sharing of best practices; partnership with civil society, the promotion of new technologies, information sharing, conclusion if co-production and co-distribution agreements.
Article 14 supplements the earlier provision on international co-operation by relating co-operation to sustainable development and poverty reduction, ‘especially in relation to the specific needs of developing countries’.
This article gave rise to very early agreement as this is he most promotive and progressive aspect of the Convention. It refers to four different dimensions.
First, cultural industries in developing countries could be strengthened by creating and strengthening cultural production and distribution capacities, facilitating wider access to the global market and international distribution networks for their cultural activities, goods and services; adopting measures in developed countries to facilitate access to their territory for the cultural activities, goods and services of developing countries; facilitating support for and mobility of creative artists from the developing world and encouraging collaboration in such areas as music and film.
Second, emphasis is laid on capacity-building in various ways, through exchange of information, expertise, the training of human resources, promotion and distribution of cultural expressions, small, medium and micro-enterprises development, the use of technology and skills development and transfer.
Third, technology transfer through the introduction of appropriate incentive measures for the transfer of technology and know-how, especially in the areas of cultural industries and enterprises;
Fourth, refers to the very important area of financial support for developing countries. The Convention establishes an International Fund for Cultural Diversity, which is to be administered by the Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions, which will receive voluntary contributions. Official development assistance, including technical assistance and other forms of financial assistance such as how interest loans and grants are also identified.
Finally, Article 16 provides for preferential treatment for developing countries through preferential treatment for developing countries and by providing preferential treatment for artists and other cultural professionals and practitioners, as well as cultural goods and services.
The rights and obligations of states party to the Convention are laid down in part iv of the Convention and reflect the general tone of the Convention by enabling states to formulate and implement cultural policies to promote and protect the diversity of cultural expressions and to strengthen international co-operation as part of their sovereign right to do so, states may take regulatory measures to promote cultural expressions, preference for domestic goods and services and the creation, production, dissemination, distribution and enjoyment of such domestic activities, goods and services, including providing for the language to be used. Financial assistance could also be provided.
One of the most creative aspects of this Convention is the way it deals with its relationship with other treaties. On the one hand, there were demands that the Convention would be superior to any previous or future treaties. On the other hand, the issue of the work of the World Trade Organisation loomed very large. The formula arrived at ensured that while existing rights and obligations under other treaties will not be modified (which could not be done under international law), states will ‘foster mutual supportiveness between this Convention and other treaties to which they are parties’. Most important of all, when interpreting and applying other treaties to which they are parties or when entering into other international obligations, state parties to this Convention shall take into account the relevant provisions of this Convention.
This Convention makes a dramatic contribution to the whole area of enhancing cultural expressions. It has been massively supported at the final session of the General Conference of UNESCO. All that remains is that states must rapidly ratify the Convention and establish the structures identified in it so that effective collaboration can take place between states to promote the common patrimony of humanity.

///Article N° : 5742


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