The text, as currently drawn up by a group of independent experts before the first intergovernmental meeting of government experts, cannot but create an impression of frustration and even dissatisfaction in anyone convinced of the need to afford effective protection to cultural diversity.
While the declared intentions, the values put forward and the scope of the draft per se are not likely to attract strong objections [1], the situation is very different as regards concrete and specific issues on which the value of the whole endeavour hangs[2].
1. An acceptable discourse
The definition of the scope of the future convention [11] and the principles and values set forth therein [12] do not create major difficulties, although extreme vigilance is called for in regard of one essential point [13].
11. scope
The first issue to be settled was the precise scope of the preliminary draft. There were four alternatives mooted in March 2003 : the drafting of a new general instrument on cultural rights, a convention solely related to the status of artists, an additional protocol to the Florence agreement or an instrument on the protection of the diversity of cultural contents and artistic expressions. As we know, the latter was chosen.
From the universalist stand point and since, as yet, no international standard-setting instrument exists on cultural rights, the FIDH would have preferred the Declaration and, subsequently, a general instrument as per the first alternative. However, in view of the conflicting interests and the choice of a gradual approach, the FIDH is content with the approach adopted especially since the fourth option would in any case have been its “second choice”. For it is essential that the matter not be reduced to “the status of artists”- important though this is-, or even to artistic expressions. The issues of cultural diversity are often mainly perceived through transatlantic quarrels about the “cultural exception” and the like, copyright systems etc., while, on a global scale, it should, first and foremost, be interpreted in broader terms relating to “anthropo-diversity” which is threatened both by global standardisation and oppressive relativisms. Now, this broader approach has finally prevailed in the scope defined by the independent group of experts ; that to our minds is critical.
12. The declared values
The preamble and chapter 1 (“Objectives and guiding principles”) do not give rise to any fundamental objections.
The FIDH particularly welcomes the parallel drawn, in terms of the urgent need for protective action worldwide, between bio-diversity and cultural diversity.
We also applaud the fact that the independent group of experts, from its first meeting, focused on the specific problems arising, on the one hand, in the “less developed” countries (objectives e and g in article 1 ; principle No. 6 in article 2), and , on the other hand, on minorities (paragraph 9 of the preamble ; principle No.4 in article 2).
13. Rights holders
This is indubitably the most important and delicate issue, as it constitutes a challenge from the point of view of the diversity of cultures and civilisations per se.
For cultural diversity patently implies the protection of the representations and expressions related to the very existence of specific human groups and, hence, the guarantee of collective use rights. However as, thank goodness, the whole approach adopted strongly relates to the framework delineated by the United Nations since the Universal Declaration of 1948, it follows that the sole holders of fundamental rights - and in particular of cultural rights - are human beings considered ut singuli. The difficulty is then to reconcile the effective protection of cultural diversity, including collective expressions, with the upholding of individual freedoms. That excludes having individual rights and obligations predicated on the power of the groups individuals are objectively deemed to belong to (rather than this being based on free choice). Both sides of this contradiction have to be addressed if we are to uphold universalism.
Now, the current wording of the 9th preambular paragraph, whilst still acceptable, in this regard requires extreme vigilance because we recognize “the fundamental right of social groups and societies, in particular, members of minorities and indigenous peoples, to create”, etc..
It is simply not acceptable to give unqualified recognition of a fundamental right to societies and social groups rather than to individual human beings ; it is essential to simultaneously proclaim the absolute freedom of every human being to choose where he belongs and where he does not (this explicitly includes the right to disassociate from the group deemed to be that of his or her “extraction”). This concern probably prompted the reference to “members of minorities and indigenous peoples”, however the language needs to be sharpened and clarified. Rights, even where -as in this instance - they are necessarily used collectively, remain intangibly individual. Hence the need for a clear and explicit distinction to be drawn between the enjoyment (purely individual) and the exercise (in part individual, in part collective) of rights.
2. Inconsistant mechanisms
In this regard the draft is highly criticable in that it lays itself wide open to verbiage and even deception. Apart from the method used [21], the issue is whether cultural rights are those which are available to all human beings or whether governments decide which human rights they are willing to make available [22].
21. The demands of reaching a consensus.
The FIDH has no illusions about the rules and the limitations of this kind of exercise. A convention of universal scope, drawn up under the auspices of UNESCO, is perforce an endeavour requiring caution and possibly the understating of the concepts and wordings used. There would be no point in a group of independent experts producing a preliminary draft so wonderful that it had no serious chance of ever being implemented.
However, in striving to reach a consensus we should not render the draft ineffectual in the interests of a display of unanimity. In this connection, it is obvious that the group of independent experts has left as many doors open as possible for the government experts who are about to address the preliminary draft. The approach is perfectly understandable and might well legitimately lead to alternative wordings. However, we should make sure that there are still real choices to serve as a point of departure for subsequent political discussion. This just does not happen when the fear of government vetos leads to the removal of all clauses likely to really embarrass some State.
In other words, while acting in the capacity of an expert clearly does not relieve the individual concerned from exercising a sense of responsibility, it would be highly regrettable if the work of such a group of experts prior to that of the government experts should be reduced to replacing censorship with self-censorship. This sort of procedure precisely requires that those involved fully assume their reponsibilities.
This is a sore point when we address the “awkward issue” namely the effectiveness of the future convention.
22. The risk of verbiage
Two issues, both of which were discussed by the group of independent experts at their third meeting in May 2004, will, in fact, determine the worthwhileness of the whole initiative : the inclusion of the future convention in the international legal order, and the sanctions applicable in case of a breach of its provisions.
221. Inclusion of the convention in the International legal order
In article 19, two options are being offered to governmental experts. Option B, based on the USA position, simply provides that the convention shall not affect any right or obligation flowing from an international instrument related to intellectual property. This is tantamount to saying that this convention will not protect cultural diversity against any norm that might threaten it. It goes without saying that this option is unacceptable to the extent that no convention at all would be better than such deception.
Option A also provides that the convention will not affect any right or obligation flowing from an existing instument but “except where those rights and obligations would cause serious damage or threat to the diversity of cultural expressions”. There we have an attempt to inject a modicum of usefulness albeit watered down in the interests of realism and compromise. It should however be noted that according to the draft it would fall to the State seeking to have the convention prevail over an existing, conflicting international provision to produce the burden of proof : not an easy task. If option A is chosen then it will only afford proper protection if that burden is more equitably shared or even reversed.
However, the greatest criticism one could level at the independent group of experts is their failure to propose a option C whereby the convention would prevail in principle (possibly with a limited number of listed exceptions) over any conflicting international norm. In other words, give some real content to the humanist professions that are so fashionable in this field. The failure to even put forward the solution best able to defend cultural diversity rather than just offer lip service, amounts, unfortunately, to doing a signal favour to States who now do not even need to argue against a solution which nobody had the courage to table in the first place. In this regard, bringing in independent experts has not produced the outcome we would have been entitled to expect.
222. The absence of sanctions
Article 24 of the preliminary draft shows that no binding sanction has been provided in case of a violation of the future convention, and the report of the independent experts group states that this was a deliberate choice.
Thus the implementation of this instrument will depend entirely on the “good faith” of the States parties. Their only obligation, where negociations or possibly mediation, recourse to arbitration, or submission to the ICJ fail, is to take their dispute to a conciliatory body - only empowered to make proposals - then to consider the proposals in “good faith”.
The stance taken by the group of experts is understandable ; that of preferring persuasion to coercition, but it would be cruel to compare these pedagogical qualms with the WTO dispute settlement system. One cannot but observe that, while stirring proclamations are made about cultural diversity, protecting that diversity is taken much less seriously than commercial advantages. It is highly regrettable that only those in the cultural works business and diplomates are involved.
At the end of the day, nothing is worse than “soft law”, which misleads those who place blind trust in international institutions to implement the principles they proclaim. That is why, regardless of the merits of the values and principles proclaimed in the preliminary draft, we are not wishing it a long life unless the provisions related to the two points discussed can be amended to have the provisions live up to the rhetoric.