An International Instrument on Cultural Diversity
By the Working Group on Cultural Diversity and Globalization
of the International Network on Cultural Policy
Introduction:
In Lucerne, on 24-26 September 2001, the Ministers of the International
Network on Cultural Policy concluded that:
- The further development of an International Instrument on Cultural
Diversity which includes a common vision, objectives and norm
setting elements is essential to articulate the close and important
relationship between cultural diversity and international social
and economic development;
- It is the legitimate role of governments to preserve and promote
cultural diversity through the development and implementation
of cultural policies at all levels;
- The needs of developing countries require increased attention
in order to augment their capacity in the field of cultural development
The Network Ministers also endorsed the Report of the Working Group
on Cultural Diversity and Globalization on the "Scope and Framework
of an International Instrument on Cultural Diversity". During
this discussion, Ministers supported the need to focus an international
instrument on the promotion and preservation of cultural diversity
in the face of globalization, including the impact of trade liberalization,
prejudicial trade practices and rapid technological advancement
on cultural products and policies.
Finally, the Network Ministers in attendance gave the Working Group
a two-year mandate for work on the international instrument. It
was decided that a draft text of the instrument, including the notion
of its enforceability, should be presented at the next annual meeting
of the cultural ministers in South Africa, in October 2002. The
objective of the exercise was to provide concrete indications concerning
the content of the instrument and its role and operation.
The Working Group on Cultural Diversity and Globalization has created
this draft Instrument as a stand-alone agreement, without reference
to any particular institution or international organization pending
further discussion of these issues by Ministers. It is not intended
that any possible or eventual institutional arrangement is being
ruled out by the use of a stand-alone approach in this text. A critical
element for further discussion will clearly be linkages between
the Instrument and existing international organizations. It must
be recognized however, that an enforceable Instrument requires an
administrative body, a dispute settlement mechanism and procedures
for entry into force. Chapters 5 and 6 are written as examples of
this kind of considerations, which must be addressed.
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The Content Of The Instrument
Preamble
The preamble of the international instrument is intended to situate
the agreement in question among other international instruments
that pertains to the same subject and to introduce its immediate
and long-term objectives. There are no steadfast rules on the subject
and while certain instruments tend to have lengthy preambles, others
tend to be rather concise in that regard. The second type of approach
is adopted here, the objective being to give a condensed view of
where the instrument comes from and where it is going.
Chapters 1 & 2: Definitions, objectives and scope, general
principles relating to the promotion and preservation of cultural
diversity
The overall objective of the instrument is the preservation and
promotion of cultural diversity. Although new information technologies,
globalization and evolving multilateral trade policies offer undisputable
possibilities for the expression of cultural diversity, they may
also be detrimental to cultural diversity and to cultural pluralism.
There is an urgent need in that context to ensure that cultural
diversity, as a source of creativity and as a factor of social cohesion
and economic development, is preserved. The immediate objective
of the instrument is to ensure that States have the means to determine,
from a cultural standpoint, and on the basis of their own conditions
and circumstances, the policies that are needed to ensure the preservation
and promotion of cultural diversity and to provide a set of principles
and rules for the realization of that goal. This section acknowledges
that cultural diversity cannot be preserved where cultural discrimination
prevails and cannot be expressed without the conditions for free
creative expression, and freedom of information existing in all
forms of cultural exchange.
Chapter 3: Ensuring the development of cultural expression and
cultural diversity at the national level
The preservation of cultural diversity implies at the outset the
preservation of all existing cultures because each culture that
disappears, each language that ceases to be spoken, is a loss for
cultural diversity. Since cultural expression is a key factor in
the ability of various cultures to adapt to the changes brought
about by globalization and technological change and to develop,
governmental action to ensure vigorous, diverse cultural expression
at the national level is needed. In addition to meeting a basic
right of individuals and communities, this action is essential for
social cohesion and for democracy to function within the state.
The instrument will look at various policy choices that can be used
by the state to achieve its cultural objectives, while insisting
on the right of every state to choose the measures that it deems
most appropriate in view of its own circumstances and conditions.
Among other subjects addressed in this section of the instrument
is the crucial role of cultural policies, the freedom to choose
appropriate measures, governmental support, public service institutions
and independent cultural industries.
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Chapter 4: Promoting and enhancing cultural diversity at the international
level
In order to preserve cultural diversity action at the national
level is not sufficient: collective action at the international
level is also necessary. The area of priority here is openness to
foreign cultural productions. This area naturally complements the
first because cultures very often develop and evolve through contact
with others. It is also widely admitted that contacts between cultures
make a major contribution to the development of creativity1.
In this sense, it could be said that the problems that arise in
regard to the preservation of cultural diversity also affect the
opportunities for creativity to flourish and, in the end, economic
development itself2. The types of action considered in
this section includes measures to facilitate exchanges, measures
to foster the consumption of a variety of cultural products, cultural
cooperation agreements, co-production and co-distribution agreements3,
as well as increased monitoring of anti-competitive behaviour in
domestic markets. The chapter ends with an article dealing more
specifically with development assistance.
Chapter 5: Institutional arrangements and dispute settlement
The measures proposed here respond to the clearly identified desire
for a legal instrument that goes beyond a simple declaration. The
provisions outlined should be seen as options associated with an
independent instrument approach. Hosting the Instrument with an
existing international organization would necessitate addressing
the issues from the perspective of that institution. Even though
the Members, by ratifying the instrument, agree in good faith to
uphold their commitments, it is necessary to have a mechanism that
will make it possible to evaluate the progress made toward the implementation
of the instrument and help to settle difficulties if the case arises.
The mechanism outlined takes the form of a Council that would receive
periodic reports from the parties on the measures taken and the
difficulties encountered in implementing their commitments. An important
question that arises here is how the Council should take its decision.
Unanimity, because of its simplicity and clarity, would be an interesting
solution. But another equally acceptable and more flexible solution
would be decision by consensus as was the case in the GATT and is
still the case in the WTO (except as otherwise provided). This is
effectively the solution retained in the present Instrument.
With regard to dispute settlement, two options are proposed. Both
options have elements in common such as the recourse to consultation
as a first step in the dispute resolution process and the possibility
of using different procedures (good offices or mediation) if the
parties consider that they can facilitate the settlement of their
dispute. Where they differ is in the degree of constraint that they
impose on the Parties. The first mechanism is very similar to the
dispute resolution mechanism in use in the GATT until 1995. The
parties to the dispute, following failure of the consultations,
request the formation of a panel (of cultural experts) which would
eventually hand down a decision. This decision would then have to
be approved by the Council (by a unanimous vote or consensus depending
on the formula chosen) to become compulsory. The refusal of the
losing party to approve the decision, as a consequence, renders
the decision non-binding. If the decision is approved, the losing
party is bound by it and must implement it in good faith. If it
does not do so, the winning party is no longer bound by the obligation
to resolve its dispute through the dispute settlement mechanism
of the instrument and can use other mechanisms open to it.
The second option is a copy of the dispute settlement mechanism
of the Convention on Biological Diversity. When ratifying, accepting,
approving or acceding to the instrument, or at any time thereafter,
a State may declare in writing to the depositary that for a dispute
not resolved through consultation or other appropriate means, it
accepts one or both of the following means of dispute settlement
as compulsory: (a) arbitration (b) submission of the dispute to
the International Court of Justice. If the parties to the dispute
have not accepted the same or any procedure, the dispute shall be
submitted to conciliation, the result of which is not binding on
them.
It must be pointed out that whatever approach is adopted, surveillance
and dispute settlement imply an administrative and financial support
which raises complex, but not insurmountable challenges in the case
of a stand-alone agreement.
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Chapter 6: Final provisions
The final provisions, as proposed, are fairly standard to international
agreements. Certain questions remain open for further discussion
and decision, such as the number of States required for the entry
into force of the proposed instrument, the identity of the depositary
of the instrument and the authentic languages of the instrument.
Regarding the number of States required for the entry into force
of the instrument, different factors should be taken into consideration.
Considering its nature, the Instrument should enter into force with
a sufficient number of States to lend it international credibility.
As for the depositary of the instrument, this question should be
considered in the context of its eventual location.
Conclusions: The Role Of The Instrument
The proposed international instrument on cultural diversity is
intended to serve as a document of reference and a code of conduct
for all those States that consider the preservation of distinct
cultural expressions and of cultural diversity itself as an essential
component of globalization. It will be enforced through a mechanism
that will monitor its implementation, examine the questions or controversies
arising from its application and provide for dispute settlement
in case of conflict. As a document of reference, it will provide
a set of rules and disciplines for governing cultural intervention
by the Member States based on a shared concept of cultural diversity
centred both on the preservation of existing cultures and openness
to other cultures. With the adherence of a growing number of States
to this reference framework, a new legal regime will be established
in the cultural field based on a shared vision of cultural interchange,
a vision where the development of the latter will accompany the
development of cultures, without superseding them. In addition to
guiding their actions in the domestic sphere, this reference document
can also be used by the Member States as a common approach in their
international negotiations. As a focal point for cooperation, the
Instrument will afford the opportunity to assist Member States encountering
difficulty following through on their undertakings, will help to
settle disputes that might arise between them and will help to establish
common approaches on all matters pertaining to the preservation
of cultural diversity. By no means a static, protectionist instrument,
it will on the contrary prove to be instrumental in the development
of cultures, cultural exchanges and cultural diversity.
Draft Text of an International Instrument / Convention on Cultural
Diversity
Outline
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Preamble
The member States signatory hereto
Considering that the right of everyone to freely participate in
the cultural life of the community is an inalienable human right
conforming to the principle embodied in Article 27 of the Universal
Declaration of Human Rights and in Article 15 of the United Nations
International Covenant on Economic, Social and Cultural Rights,
Recalling the provisions of the UNESCO Declaration of the Principles
of International Cultural Co?operation adopted in Paris in 1966,
and particularly its Article 1 which states that "each culture
has a dignity and value which must be respected and preserved",
Having regard to the Declaration on Cultural Diversity adopted
by the Council of Europe on 7 December 2000, to the Cotonou Declaration
on cultural diversity adopted by the culture ministers of the International
Organization of the Francophonie on 15 June 2001 and to the Universal
Declaration on Cultural Diversity adopted by UNESCO on 2 November
2001,
Conscious of the efforts needed to face the challenges of cultural
development and preservation of the diversity of cultures, as expressed
in "Our Creative Diversity", the Report of the World Commission
on Culture and Development, and recalling the principles and action
plan adopted by the Intergovernmental Conference on Cultural Policies
for Development, held at Stockholm in 1998,
Noting that culture is at the heart of contemporary debates about
identity, social cohesion, and the development of a knowledge-based
economy,
Recognizing that new trends, particularly globalization, link cultures
ever more closely and enrich the interaction between them, but that
they may also be detrimental to the preservation of cultural identities
and cultural diversity,
Recognising that the development of new information technologies
and evolving multilateral trade policies pose a fundamental challenge
to the ability of governments to nurture and promote cultural diversity
using existing cultural policy tools,
Recognizing that even if it falls primarily to the States to take
up this challenge from their own cultural perspective, it is also
clear that the shared global context for development requires the
elaboration of a set of principles and rules which will provide
a coherent framework for sustaining and enabling cultural diversity
at all levels,
Recognizing that there is a pressing need for increased domestic
and international recognition and management of cultural diversity
to ensure the linguistic, cultural, civil and human rights of citizens,
while at the same time sustaining a basic level of shared identity,
social cohesion and national solidarity in a global environment
Recognizing that the cultural expression, envisaged a means of
social communication, is part and parcel of the democratic process
of our societies and as such has a preponderant role to play in
meeting the challenge of preserving cultural diversity,
Considering that cultural diversity is a source of creativity and
an essential factor of social and economic development,
Conscious of the special needs of developing and least developed
countries whose cultural sector is often in a nascent stage and
of the necessity in this respect to integrate cultural policies
into development policies,
Convinced that it is necessary that the freedom of States and governments
to maintain and develop policies, which promote and preserve cultural
diversity, be respected and recognized,
Determined to protect cultural diversity while encouraging cultural
exchange,
Affirming the importance of promoting coherence between provisions
of multilateral trade policies and cultural policies,
Agree as follows:
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Chapter 1: Definitions, Objectives And Scope
Article 1: Definitions
For the purposes of this Convention:
- "Culture" is the whole complex of distinctive
spiritual, material, intellectual, and emotional features that
characterize a society or social group. It includes creative expression
(e.g., oral history, language, literature, performing arts, fine
arts, and crafts), community practices (e.g., traditional healing
methods, traditional natural resource management, celebrations,
and patterns of social interaction that contribute to group and
individual welfare and identity), and material or built forms
such as sites, buildings, historic city centres, landscapes, art,
and objects.
OR
"Culture" is the whole complex of distinctive
spiritual, material, intellectual and emotional features that
characterize a society or social group. It includes not only arts
and letters but also modes of life, the fundamental rights of
the human being, value systems, traditions and beliefs (UNESCO).
- "Cultural diversity" refers to the plurality
of cultures that coexist in the world. It implies on the one hand
the preservation and promotion of existing cultures, and on the
other hand receptivity to other cultures.
- "Cultural policies" refers to a framework
of goals, practical objectives and measures adopted by national
and sub-national authorities to preserve cultural heritage, tangible
and intangible, to favour the development of cultural expression
and to preserve and promote cultural diversity nationally and
internationally.
- "Cultural expression" refers to the creation,
production distribution and exhibition of cultural contents, in
any medium or form, existing or to be created.
- "Cultural content" refers to the creative output
of individual creators and cultural industries which is typically
protected by intellectual property rights and includes: 1) the
creative output of individuals in the performing arts, visual
arts and crafts, architecture and design; 2) the sounds, images
and texts of films, video, sound recordings, books, magazines,
newspapers, broadcast programs and other forms of media including
multimedia, whether now existing or to be invented, that are the
creation of individuals or cultural industries; 3) the collections
and displays of museums, galleries, and libraries, including archives
relating to the cultural heritage of a society.
- "Cultural industries" refers to organizations
and enterprises that create, produce, publish, distribute, exhibit
or provide cultural contents.
- "Independent cultural industries" refers to
enterprises, which are not subject financially, creatively or
in terms of ownership to majority control by large private companies
and public service institutions.
- "Public service institutions" refers to organizations
established and essentially publicly funded for the fulfilment
of public service obligations with respect to culture and cultural
diversity as conferred, defined and organized by each Member State.
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Article 2: Objectives
The objectives of this Convention, as elaborated more specifically
through its principles and rules, are to:
- ensure that cultural diversity is promoted and preserved in
the face of the changes introduced by globalization, trade liberalization
and technology;
- preserve the right of States to maintain or adopt the measures
that they consider appropriate to the development of cultural
expression and to the promotion and enhancement of cultural diversity;
- serve as a frame of reference for all those States that consider
the achievement and maintenance of distinct cultural expression
and the preservation of cultural diversity itself as an essential
component of globalization;
- reinforce international cooperation and solidarity aimed at
enabling all countries, especially developing countries and least
developed countries, to create and maintain cultural industries
that project their own vision at the national and international
level;
- provide a basis for the promotion of the principles of this
Convention in other international fora, including international
trade fora.
Article 3: Scope
This Convention applies to the cultural policies that Member States
maintain or adopt.
Chapter 2: General Principles Relating To
The Promotion And Preservation Of Cultural Diversity
Article 4: The particular nature of cultural products
When devising national or international policies or measures, the
Members agree to take into account the particular nature of cultural
goods and services, as vectors of identity, values and meaning that
must not be treated as mere commodities or consumer goods.
Article 5: The balance inherent to the concept of cultural diversity
Any action considered necessary to achieve the objectives of this
Convention must reflect the balance between the promotion of domestic
cultural expression and openness to other cultural influences that
is inherent to the concept of cultural diversity.
Article 6: The importance of public policy
Market forces alone cannot guarantee the maintenance and promotion
of diverse cultural expressions and of cultural diversity. Public
policy, developed in partnership with civil society and the private
sector are of a vital importance in realizing the objectives of
the present Convention.
Article 7: Transparency
Transparency in the elaboration and management of cultural policies
is a legitimate expectation of society and citizens and a necessary
condition for the good working of the present Convention.
Article 8: Freedom of expression and information
Members acknowledge that cultural diversity cannot be expressed
without ensuring the conditions for freedom of speech, freedom of
information and free creative expression existing in all forms of
cultural exchanges.
Article 9: Intellectual property
Nothing in this Convention shall derogate from existing obligations
that Members may have to each other under existing intellectual
property conventions.
Article 10: Cultural rights and cultural diversity
Members, recognizing that cultural rights provide an enabling environment
for the realization of cultural diversity, promote and encourage
understanding of the nature and significance of such rights in their
cultural policy.
Article 11: Existing regime of protection of human rights
Nothing in this Convention may be interpreted as implying any right
to engage in any activity or perform any action infringing upon
human rights presently guaranteed by international law, nor to limit
their scope.
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Chapter 3: Ensuring The Development of Cultural
Expression and Cultural Diversity at the National Level
Article 12: Cultural policies
Members recognize the importance of promoting through appropriate
cultural policies an environment favourable to the development of
cultural expression and cultural diversity at the national level.
They take this concern into consideration in the formulation of
their national policies in other sectors.
Article 13: Freedom of choice of appropriate measures
- Acting in conformity with the principles of balance and transparency
enunciated in Chapter 2, Members determine in light of their own
particular conditions and circumstances what measures are appropriate
to ensure the promotion and preservation of cultural expression.
- For greater clarity, Articles 14 to 17 deal with certain types
of policies that appear particularly important for the development
and preservation of cultural expression. The mention of these
policies does not exclude in any way recourse to other measures.
Article 14: Maintaining a space for domestic cultural products
Members, recognizing that the maintenance of a cultural space for
national products is a necessary condition for preserving cultural
diversity at the international level may, when they deem appropriate,
adopt measures conducive to guaranteeing such a space, including
language and/or content requirements, where applicable. When they
adopt such measures, Members acting in conformity with the principles
of Chapter 2, shall ensure that government policies do not undermine
the principle of openness to other cultures.
Article 15: Financial support
Members recognize that public financial support, in the vast majority
of States, is essential for the promotion and development of cultural
expression and do their best to ensure that appropriate financial
support is made available to achieve this objective. They consider
in that regard that it is for each State to decide on the nature,
importance and beneficiaries of that support.
Article 16: Public service institutions
Members recognize that public service institutions play an important
role for the safeguarding of cultural diversity and encourage their
use. They also recognize the authority of each State to provide
for the funding of such public service institutions insofar as such
funding is granted to them for the fulfilment of the public service.
Article 17: Independent cultural industries
Members recognize the contribution of independent cultural industries
to the achievement of cultural diversity and ensure, where practicable
and by appropriate means, that independent cultural industries have
effective access to the means of production, distribution and diffusion
of their works.
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Chapter 4: Preserving and Enhancing Cultural
Diversity at the International Level
Article 18: Reinforcing international cultural cooperation
Members, conscious of the efforts needed to face the challenges
of cultural development and preservation of the diversity of cultures,
actively promote cooperation and interchange between their respective
governments, cultural institutions and their private cultural organizations
with a view to enriching and disseminating cultural and artistic
expression and promoting cultural diversity.
Article 19: Facilitating the exchange of information
Members shall facilitate the exchange of information, from all
publicly available sources, relevant to the promotion and preservation
of cultural diversity, taking into accounts the special needs of
developing and least developed countries.
Article 20: Improving access to the diversity of foreign cultural
products
In order to facilitate access to a broad choice of foreign cultural
products, Members:
- Encourage, when appropriate, the conclusion of cultural co-production
and co-distribution agreements.
- Consult in order to identify measures and best practices that
can facilitate access to a wider range of foreign cultural products,
such as fiscal incentives to distributors of foreign cultural
products, financial aid for translating or dubbing foreign works
and opening up of special outlets.
- Recognize the importance of competition laws for citizens and
the public in general in order to ensure access to diverse cultural
expression
Article 21: Promoting cultural diversity in other international
fora
Members pay particular attention to the need to sustain and promote
cultural diversity in other international foras where it may be
directly or indirectly called into question. When they are called
upon to make commitments that could put at risk the preservation
of cultural diversity, they consult for the purpose of developing
a common approach in that regard. Members refrain from making commitments
contrary to the objectives of the present Convention.
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Article 22: Development Assistance
- Members shall cooperate in the development and strengthening
of human resources and institutional capacities in cultural production
for the purpose of the effective implementation of this Convention
in developing and least developed country Members, including through
existing global, regional, sub regional and national institutions
and organizations.
- In order to counter the digital divide, Members work in close
cooperation with relevant international organizations to foster
access by the developing and least developed countries to the
new technologies, by helping them to master information technologies
and by facilitating the digital dissemination of endogenous cultural
products and access by those countries to the digital resources
available world-wide.
- At the latest at the end of the first year of entry into force
of this Convention, developing and least developed country Members
submit specific requests for facilitating their cultural exchanges
with developed country Members.
- Developed country Members undertake to submit, at the latest
at the end of the second year of entry into force of this Convention,
concrete proposals for facilitating their cultural exchanges with
developing and least developed country Members.
Note on Chapters 5 and 6
At the 2001 Annual Ministerial Meeting of the INCP, Ministers called
for the further development of an International Instrument on Cultural
Diversity, which includes a common vision, objectives, and norm-setting
elements. Among other issues to be addressed in the international
instrument, Ministers noted that "existing international agreements
in the cultural sector do not sufficiently address the policy issues
inherent in globalization ensuring cultural diversity. Most instrument
are of a declaratory nature only and are unable to balance out the
international trading system with its enforceable dispute settlement
mechanisms".
Therefore, in order to address these particular issues, the Working
Group on Cultural Diversity and Globalization believes that an enforceable
international instrument must include:
- An administrative body to manage the agreement
- A dispute settlement mechanism
- Procedures for entry into force, modification, accession, withdrawal
What follows in Chapters 5 and 6 are two possible options for the
fulfilment of these necessary functions. They should be read and
considered also in light of the findings of the Special Policy Research
Team on Governance Issues, which can be found under separate cover.
It is not intended that any possible or eventual institutional arrangement
is being ruled out by the use of a stand-alone approach in this
text. A critical element for further discussion will clearly be
the linkages between the Instrument and existing international organizations.
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Chapter 5: Institutional Arrangements and
Dispute Settlement
Article 23: The Council
- A Council of the Members, in which each Party has equal representation,
is hereby established to manage this Convention. All decisions
by the Council shall be by consensus. The Council shall determine
its own rules and procedures.
- The Council shall oversee the operation of this Convention.
It shall be responsible in particular for:
- developing a framework of governance for the Convention,
including the setting up of a secretariat;
- discussing and resolving any question relating to implementation
of this Convention;
- following up implementation of the Convention based on the
information provided by the Members;
- evaluating the application of this Convention and proposing,
if necessary, ways to enhance the operation of this Convention;
- deciding upon the application of States to accede to this
Convention.
- Members shall submit to the Council within the first two years
of entry into force of this Convention their national cultural
policy framework and proposed measures for the promotion of cultural
expression and achievement and preservation of cultural diversity.
They shall subsequently provide information on changes, which
impact the implementation of their cultural policies.
- Members hereby establish a Committee on Cultural Policies comprising
representatives of each Member. The Committee functions shall
include:
- monitoring and promoting co-operation on the implementation
and administration;
- providing a forum for the Members to consult on related
issues at least annually and as the Members may otherwise
agree;
- reporting annually to the Council.
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Article 24: Dispute Settlement (Option 1)
- Members accept to resolve their disputes concerning the interpretation
and application of the Convention through a Committee of Experts
set up by the Council to resolve disputes following the procedures
below.
- If one or more Members considers a measure taken by one or
more Members to be inconsistent with this Convention, that Complaining
Member or Members (the Complainant) may request in writing to
the Respondent and the Chairman of the Council consultations with
the other member or Members (the Respondent). The parties to the
dispute shall, within 20 days of receipt of the request, consult
with each other with a view to resolving the issue.
- If the issue has not been resolved through consultations within
45 days of receipt of the request for consultations, any of the
parties to the dispute may request, in writing, to the other party
to the dispute and the Chairman of the Council that a Committee
of Experts be established to consider the issue in accordance
with procedures set out in Annex 1. Any conclusions adopted by
the Committee shall be by consensus.
- After the request for a Committee of Experts has been made
and the Committee formed to hear the dispute, the Complainant
shall submit its views in writing (the complaint) to the Chairman
of the Council and the Respondent. Within 30 days of receiving
the complaint, the Respondent shall forward its reply to the Chairman
of the Council and the Complainant, together with its supporting
evidence and documentation.
- The Committee of Experts shall forward its conclusions to the
Parties to the dispute within 60 days of the date on which the
Committee of Experts received the Respondent's submission provided
for in paragraph 3 of this Article or the expiration of the period
in which such submission is to be made in accordance with paragraph
3 of this Article.
- Where the Committee of Experts finds that the Respondent has
breached this Agreement, the Committee shall provide in its conclusions
a reasonable period of time for the Respondent to rectify its
breach. The period established shall be the shortest reasonable
time period feasible. If the Parties to the dispute have not agreed
by the expiry of that period that the breach has been rectified,
the Complainant may set forth in writing, to the presiding expert
and the Respondent evidence of non-compliance and request the
Committee to decide whether the breach has been rectified. The
Respondent shall have 21 days from the date of receipt of the
Complainant's request to the presiding expert to respond to the
Complainant's allegations. The Committee shall issue its decision
within 15 days after the expiration of the deadline for the Respondent's
response.
- The decision of the Committee of Experts is submitted for approval
to the Council. If the decision is approved, the Respondent shall
implement it in good faith. If the Council finds that the Respondent
has failed to rectify such breach within the designated period
of time, the Complainant may suspend its obligations in relation
to the Respondent.
- The Members to the dispute may agree for purposes of a specific
dispute under this Article to follow different procedures than
those set out in this Article for the purpose of expediting, enhancing,
or facilitating the resolution of the specific dispute.
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Article 24: Dispute Settlement (Option 2)
- In the event of a dispute between Members concerning the interpretation
or application of this Convention, the parties concerned shall
seek solution by negotiation.
- If the parties concerned cannot reach agreement by negotiation,
they may jointly seek the good offices of, or request mediation
by, a third party.
- When ratifying, accepting, approving or acceding to this Convention,
or at any time thereafter, a State may declare in writing to the
depositary that for a dispute not resolved in accordance with
paragraph 1 or paragraph 2 above, it accepts one or both of the
following means of dispute settlement as compulsory:
- Arbitration in accordance with the procedure laid down
in Part 1 of
Annex 2;
- Submission of the dispute to the International Court of
Justice.
- If the parties to the dispute have not, in accordance with
paragraph 3 above, accepted the same or any procedure, the dispute
shall be submitted to conciliation in accordance with Part 2 of
Annex 2 unless the parties otherwise agree.
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Chapter 6: Final Provisions
Article 25: Notification procedure
- The laws, regulations and prescriptions of Members relating
to cultural policies in existence at the date of entry into force
of this Convention shall be incorporated in a Schedule communicated
to the Council and to the Committee on Cultural Policies.
- In the case of a State which adheres to the present Convention
after its entry into force, the laws, regulations and requirements
relating to cultural practices in force on its territory at the
date of its adhesion shall be incorporated in its Schedule.
- Each Member shall promptly and at least annually inform other
Members of any new, or any changes to existing, laws, regulations
or administrative guidelines relating to the maintenance and promotion
of cultural expression and cultural diversity.
- Members that are developing countries or that are countries
in the initial stages of development shall be allowed a certain
flexibility in providing the information requested.
Article 26: Amendment
- Any Party may propose amendments to this Convention or its annexes.
The text of any proposed amendment shall be submitted to the depositary,
which shall promptly communicate it to all Members at least ninety
days in advance of its consideration by the Council.
- Initial consideration of any proposed amendment shall take place
at the first meeting of the Council following communication of
the proposed amendment. Amendments shall be adopted by the Council
by unanimous vote.
- Instruments of acceptance in respect of an amendment shall be
deposited with the depositary. An amendment shall enter into force
for Members having accepted it on the thirtieth day following
the receipt by the depositary of the instruments of acceptance
of a majority of Members. Thereafter, it shall enter into force
for each Member depositing its instrument of acceptance on the
thirtieth day following the receipt by the depositary of that
Party's instrument of acceptance. Each State that accedes to this
Agreement after the entry into force of any amendment shall become
a Member to the Agreement as amended.
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Article 27: Entry into force
The present Convention shall come into force after the deposit
of 30 instruments of ratification. As regards any signatory ratifying
subsequently, the Convention shall come into force at the date of
the deposit of its instrument of ratification.
Article 28: Accession
Any country may accede to this Convention following approval in
accordance with the applicable procedure of each country.
Article 29: Withdrawal
A Member may withdraw from this Convention six months after it
provides written notice of withdrawal to the other Members. Withdrawal
shall take effect six months after the date of receipt of the notification,
unless the notification specifies a later date or the notification
is withdrawn prior to this date.
Article 30: Depositary
The Chairman of the Council shall act as depositary of the present
Convention.
Article 31: Authentic texts
The English, French, Spanish texts of this Convention are equally
authentic.
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Annex (1): The Committee of Experts
- The Parties shall establish a list of experts in cultural matters.
- Each Party shall appoint four experts to this list, who shall
be its nationals.
- The list shall be maintained by the depositary.
- The Parties to the dispute shall agree on the selection of three
experts from the list, none of whom shall be nationals of the
Parties to the dispute and one of whom shall be from a developing
country. In the event the Parties to the dispute cannot agree
within 15 days from the date of the request for the establishment
of a Committee of Experts made to the Chairman of the Council,
the Chairman of the Council shall select these three experts,
none of whom may be nationals of the Parties to the dispute, at
random from the list. The Chairman of the Council shall conduct
such random selection in the presence of official representatives
designated by the Parties to the dispute.
- When the Chairman of the Council receives the Complainant's
and Respondent's complete submissions in accordance with 27 (4)
of this Convention, the Chairman of the Council shall forward
the submissions to the experts appointed by the Parties to the
dispute within three days. Should an expert not be available,
a replacement shall be appointed by the affected Party or Parties,
or selected by the Chairman of the Council, in accordance with
procedures set out above in paragraph 4.
- The Parties to the dispute shall bear their own respective costs
and expenses incurred in relation to the proceedings before the
Committee of Experts. The fees and expenses of the experts shall
be borne by the Parties to the dispute, in equal shares.
- The Council shall adopt rules of procedure that will apply to
the Committee of Experts established pursuant to Article 27 (3)
of this Convention.
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Annex (2): (On the Model of the Convention on Biological Diversity)
Part 1: Arbitration
Article 1
The claimant party shall notify the secretariat that the parties
are referring a dispute to arbitration pursuant to Article 27. The
notification shall state the subject-matter of arbitration and include,
in particular, the articles of the Convention or the protocol, the
interpretation or application of which are at issue. If the parties
do not agree on the subject-matter of the dispute before the President
of the tribunal is designated, the arbitral tribunal shall determine
the subject matter. The secretariat shall forward the information
thus received to all Contracting Parties to this Convention or to
the protocol concerned.
Article 2
- In disputes between two parties, the arbitral tribunal shall
consist of three members. Each of the parties to the dispute shall
appoint an arbitrator and the two arbitrators so appointed shall
designate by common agreement the third arbitrator who shall be
the President of the tribunal. The latter shall not be a national
of one of the parties to the dispute, nor have his or her usual
place of residence in the territory of one of these parties, nor
be employed by any of them, nor have dealt with the case in any
other capacity.
- In disputes between more than two parties, parties in the same
interest shall appoint one arbitrator jointly by agreement.
- Any vacancy shall be filled in the manner prescribed for the
initial appointment.
Article 3
- If the President of the arbitral tribunal has not been designated
within two months of the appointment of the second arbitrator,
the Secretary-General of the United Nations shall, at the request
of a party, designate the President within a further two-month
period.
- If one of the parties to the dispute does not appoint an arbitrator
within two months of receipt of the request, the other party may
inform the Secretary-General who shall make the designation within
a further two-month period.
Article 4
The arbitral tribunal shall render its decisions in accordance
with the provisions of this Convention, any protocols concerned,
and international law.
Article 5
Unless the parties to the dispute otherwise agree, the arbitral
tribunal shall determine its own rules of procedure.
Article 6
The arbitral tribunal may, at the request of one of the parties,
recommend essential interim measures of protection.
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Article 7
The parties to the dispute shall facilitate the work of the arbitral
tribunal and, in particular, using all means at their disposal,
shall:
- Provide it with all relevant documents, information and facilities;
and
- Enable it, when necessary, to call witnesses or experts and
receive their evidence.
Article 8
The parties and the arbitrators are under an obligation to protect
the confidentiality of any information they receive in confidence
during the proceedings of the arbitral tribunal.
Article 9
Unless the arbitral tribunal determines otherwise because of the
particular circumstances of the case, the costs of the tribunal
shall be borne by the parties to the dispute in equal shares. The
tribunal shall keep a record of all its costs, and shall furnish
a final statement thereof to the parties.
Article 10
Any Contracting Party that has an interest of a legal nature in
the subject-matter of the dispute which may be affected by the decision
in the case, may intervene in the proceedings with the consent of
the tribunal.
Article 11
The tribunal may hear and determine counterclaims arising directly
out of the subject- matter of the dispute.
Article 12
Decisions both on procedure and substance of the arbitral tribunal
shall be taken by a majority vote of its members.
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Article 13
If one of the parties to the dispute does not appear before the
arbitral tribunal or fails to defend its case, the other party may
request the tribunal to continue the proceedings and to make its
award. Absence of a party or a failure of a party to defend its
case shall not constitute a bar to the proceedings. Before rendering
its final decision, the arbitral tribunal must satisfy itself that
the claim is well founded in fact and law.
Article 14
The tribunal shall render its final decision within five months
of the date on which it is fully constituted unless it finds it
necessary to extend the time-limit for a period which should not
exceed five more months.
Article 15
The final decision of the arbitral tribunal shall be confined to
the subject-matter of the dispute and shall state the reasons on
which it is based. It shall contain the names of the members who
have participated and the date of the final decision. Any member
of the tribunal may attach a separate or dissenting opinion to the
final decision.
Article 16
The award shall be binding on the parties to the dispute. It shall
be without appeal unless the parties to the dispute have agreed
in advance to an appellate procedure.
Article 17
Any controversy which may arise between the parties to the dispute
as regards the interpretation or manner of implementation of the
final decision may be submitted by either party for decision to
the arbitral tribunal which rendered it.
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Part 2: Conciliation
Article 1
A conciliation commission shall be created upon the request of
one of the parties to the dispute. The commission shall, unless
the parties otherwise agree, be composed of five members, two appointed
by each Party concerned and a President chosen jointly by those
members.
Article 2
In disputes between more than two parties, parties in the same
interest shall appoint their members of the commission jointly by
agreement. Where two or more parties have separate interests or
there is a disagreement as to whether they are of the same interest,
they shall appoint their members separately.
Article 3
If any appointments by the parties are not made within two months
of the date of the request to create a conciliation commission,
the Secretary-General of the United Nations shall, if asked to do
so by the party that made the request, make those appointments within
a further two-month period.
Article 4
If a President of the conciliation commission has not been chosen
within two months of the last of the members of the commission being
appointed, the Secretary-General of the United Nations shall, if
asked to do so by a party, designate a President within a further
two-month period.
Article 5
The conciliation commission shall take its decisions by majority
vote of its members. It shall, unless the parties to the dispute
otherwise agree, determine its own procedure. It shall render a
proposal for resolution of the dispute, which the parties shall
consider in good faith.
Article 6
A disagreement as to whether the conciliation commission has competence
shall be decided by the commission.
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