Strategic Options for a New International Instrument on Cultural
Diversity
Discussion Paper for Ministers at the 5th Annual Meeting of The
International Network on Cultural Policy (INCP) from the Special
Policy Research Team (SPRT) on Governance Issues
Subject
The SPRT's studies provide important information that can be used
to choose among the governance options evaluated on the basis of
the advantages and disadvantages noted 1. However, given
the existence of a certain number of imperatives, or immutable elements,
the operational choices are even more limited. That is the subject
of this document, whose conclusions call for an examination of the
various strategic scenarios for the implementation of the IICD and
for the evolution of its governance in the short-, medium- and long-term
2.
Objective
The purpose of the SPRT research is to help determine the best
framework with which to manage the IICD and in particular:
- to foster recognition of the legitimacy of the instrument to
promote the principles of cultural diversity at the national and
international levels,
- to foster respect for the integral nature of the measures in
the instrument, which are themselves a reflection of the objectives,
- to meet the challenges of multilateral governance of the instrument
(implementation, management and recognition), while ensuring that
its mechanisms are effective,
- to adapt "to new cultural policy issues in the context
of a globalized economy" (evolving instrument).
Each of the options presents challenges of various kinds (political
or structural) and the fact there is no one obvious solution means
we must consider a strategy for developing an approach to the governance
issues. The objective here is to present these challenges and situate
them in the operational perspective of implementing the instrument.
First Analysis (Basis For Discussion On A Short-Term Strategy)
The SPRT's research on legal instruments developed in other sectors
shows how important recognition is for any international agreement.
Recognition can be expressed by the support of an international
organization, the number of signatory States, or the mechanisms
of the instrument. What are the relative options for an international
instrument on cultural diversity in the short term?
Back to Top
1. The IICD and the WTO
With regard to the WTO, the study prepared in the SPRT suggests
how difficult it would be to negotiate the initial integration of
an instrument on cultural diversity within that organization's multilateral
agreements, especially since the IICD, although involving commercial
considerations, is being designed from a cultural perspective. It
is also within the current context of developing the instrument
within the INCP that a link with the WTO, of any kind, is further
called into question. The member countries of the European Union
cannot subscribe, within an international agreement, to individual
commitments relative to multilateral commercial negotiations, since
this is a prerogative of the European Union. Thus the countries
that are members of both the European Union and the Special Policy
Research Team cannot consider the hypothesis of such a link, since
they cannot be involved in any effort to link the instrument to
the WTO.
The prospect of recognition of the instrument by the WTO can nonetheless
be contemplated, further to the development of an "external"
agreement, whether in another organization or in an independent
context. However, the difficulties experienced in the environmental
sector give cause to question the ideal strategic option to be employed.
If the idea of creating an instrument that clearly enunciates sectorial
(cultural, environmental, …) principles that can support a
bridge with the existing commercial agreements certainly seems to
be the best suited, this solution poses structural and time-consuming
problems. For example, the inconsistencies appeared between the
obligations taken under multilateral environmental agreements (MEAs)
and obligations taken under multilateral trade agreements led to
current WTO negotiations to resolve the legal relationship of MEAs
and WTO agreements.
At this point, these elements indicate that the priority should
be on finding the best way to "anchor" the instrument
out of the WTO, but keeping in mind the need to achieve coherence
between multilateral trade agreements and the instrument. In that
context, it is also essential to remember that multilateral, regional
and bilateral trade negotiations will be underway during discussions
about the development of a new instrument. Because one of the objectives
of the instrument is to address the impact of trade liberalisation
on cultural diversity, it is important to make timely progress towards
an instrument. Moreover, discussion of a new instrument could attract
the attention of the international trade policy community just as
trade negotiations could raise issues relevant to discussions about
the instrument.
2. The IICD and the UNESCO
UNESCO would seem to be the (natural) benchmark agency to serve
as depositary for such an instrument in the medium to longer term.
Based on the results of the second SPRT study on UNESCO, however,
a number of scenarios have to be envisaged for a possible "transfer"
of the IICD to that organization, and a number of elements have
to be considered, starting with the definition of the INCP's and
UNESCO's reciprocal intentions.
- Is the INCP prepared to entrust governance of the instrument
to UNESCO? The Network members' choice must be the object of a
policy decision. If the answer is yes, official relations will
have to be established with this organization. In this event,
feasible timeframes and operational capacity will have to be considered.
Indeed, the possibility of a rapid "adoption" of the
instrument by UNESCO faces certain obstacles that could compromise
that adoption unless extraordinary measures 3; one
alternative however would be to consider repatriating the IICD
within UNESCO in the longer term (cf. stand-alone instrument).
In all cases, the probability of having to conduct negotiations
on the instrument within UNESCO, with the risk of producing a
"resized" tool must also be considered. Finally, it
would be worthwhile assessing the organization's structures more
fully, in particular the dispute settlement procedures, in relation
to the instrument's objectives
- Are the UNESCO members interested in the possibility of UNESCO
serving as depositary for the instrument? An official response
is required and will come from a) a formal request from the INCP
(cf. above), b) a request from the members of UNESCO and the INCP
within UNESCO, c) a UNESCO solicitation to the INCP. At present,
the attitude UNESCO can only be guessed, given its reserved position
on the process for an instrument in light of the hope the USA
will someday return to the organization, and given the ambiguous
statement in the action plan accompanying the 2001 Universal Declaration
on Cultural Diversity: "taking forward notably consideration
of the opportunity of an international legal instrument".
Back to Top
3. The IICD as a Stand Alone Agreement
There remains the possibility of developing a stand-alone instrument.
While this solution poses the risk of failure for lack of institutional
"sponsorship" or because of limited support -an insufficient
"critical mass" of signatory countries-, but also of funding,
it also offers the advantages of being able to preserve the instrument's
content intact and to implement it in a fairly short time frame:
once the text is agreed upon, the ministers of the countries interested
in the instrument can decide to quickly convene an official ad hoc
meeting -outside the INCP- to launch a formal negotiation process.
However, as this would not involve integration into an existing
structure, this proposal entails the construction of an "environment"
for the instrument, i.e., definition of institutional and dispute
settlement mechanisms adequate to guarantee the emergence and recognition
of the principles of cultural diversity that are set forth -in the
form of substantive rights in the current version, but binding.
Consensus at this level is certainly not easy to achieve -cf. Convention
on Biological Diversity, "Study of other instruments".
To continue this line of thought, the positioning of a stand-alone
instrument within the international legal fabric -the work for its
recognition- depends on the binding force of the agreement and the
dynamic capacity that must accompany its governance. The first of
these characteristics is achieved if the parties agree on certain
commitments about information and co-operation regarding cultural
policy making, as much as the degree of constraint adopted in the
instrument to ensure its transparency in the event of cultural conflict,
so to speak, when the parties accord on the precedence of the settlement
system provided for by the agreement over any other instrument in
the event of cultural conflict -a subject that will require in-depth
examination. Apart from the obligation to designate the depositary
of the IICD - if its members agree, a good possibility could be
a "housing" within the ministers' committee described
under-, the second characteristic -the dynamic capacity of the instrument-
can only be provided by an active structure that will act as a follow
up group in charge of gather and analyse the various transformations
of cultural policies in the signatory countries. In order to perform
these tasks, it has been proposed in the Working Group's draft text
to create a ministerial committee together with a secretariat that
can manage communications at a minimum, with its role being expandable
to other functions of monitoring, control, information, support,
etc.
These questions (depository, secretariat, management) might suggest
the founding of a new organization, but it seems necessary to rule
out this option, not only because of the costs generated -some idea
of which can be gleaned from the study of instruments in other sectors-
but also pending a decision on the development and management options
of the instrument in the medium term.
Finally, the study on "other instruments" highlights
the value and strength of developing such a "co-operation"
instrument with international institutions. On the one hand, this
opportunity takes advantage of the weight of an established international
system, and on the other hand, the other members of the partner
organizations can be invited to adhere to the instrument even though
they did not participate in its development.
Back to Top
Conclusion
Through the various elements mentioned in this document, the intention
is to establish a sort of governance pre-selection that strengthens
the framework of the SPRT studies, pointing up the advantages and
disadvantages described in the options for governance of the IICD.
Some intrinsic conclusions could arise out of the work of the SPRT
that have to prevail for the Ministers' discussion
But what is more, and especially in relation with the actual WG-CDG's
draft text of the instrument which contains precise chapters devoted
to the operational drive of the agreement, this exercise highlights
clearly the need to develop a strategy to implement and apply the
instrument. The choice of institutional mechanism has an impact
on the definition of the instrument's content -its design and drafting-,
if only in terms of the structures it requires: management of the
transparency of the instrument, dispute settlement procedures, but
also information, monitoring and advisory activities, and indeed
lobbying or representation during negotiations.
These are the elements of a governance strategy: choices in their
regard clearly follow from a political decision, as well as these
directly depend on the Ministers' priorities for the instrument
itself. Short-, medium- and long-term "operational projections"
for its governance, including the "structural specifications",
could give reason to one of the discussed solutions.
Back to Top |