UNESCO Tackles Culture and Commerce
A new international treaty entered into force in March, encouraging parties to adopt measures to protect the diversity of cultural expressions that may be imperilled by the quickening pace of globalisation.
Since the early 1980s, international trade in cultural goods has grown six-fold, increasing from US$9.5 billion in 1980 to US$60 billion in 2002. According to the World Bank, cultural and creative industries account for more than 7 percent of world GNP, which represents a global commercial value of US$1.3 trillion. A handful of countries export the lion’s share of cultural goods, with Europe leading at 51.8 percent, followed by Asia (20.6 percent) and North America (16.9 percent). Likewise, rich countries account for more than 90 percent of all cultural imports, led by the US, the UK and Germany. In contrast, Latin America and Africa were estimated to represent 3 and 1 percent, respectively, of world trade in cultural goods in 2002.
Some statistics on the diversity of cultural expressions are startling. For example, while Hollywood accounts for 85 percent of box office revenue worldwide, in Africa just 2 percent of the population has seen African films. There thus appears to be both a decrease in the dissemination of cultural goods on a global scale, and a decline in the production of, and access to, a diversity of such goods and services.
In addition, cultural industries are progressively taking over traditional forms of creation and dissemination and bringing about changes in cultural practices. The diminishing diversity of languages offers a striking example: while there are more than 6000 living languages in the world, those used in commerce and new technologies are increasingly dominant. It is estimated that a language disappears every two weeks and there are predictions that 90 percent of them will be extinct within a hundred years.
Convention on Cultural Diversity
It is against this backdrop that the members of the UN Educational, Scientific and Cultural Organisation (UNESCO) adopted a Convention on the Protection and Promotion of the Diversity of Cultural Expressions1 in October 2005. The treaty, which entered into force in March 2007, recognises that cultural goods and services cannot be treated as mere commodities. It explicitly allows parties to protect and promote the diversity of their cultural expressions  through, for instance, adopting measures aimed at:
providing opportunities for the creation, production, dissemination and enjoyment of domestic cultural activities, goods and services, including provisions relating to language;
providing domestic independent cultural industries and activities in the informal sector effective access to the means of production, dissemination and distribution;
providing public financial assistance; and enhancing diversity of the media, including through public service broadcasting.
Parties to the convention may also take ‘all appropriate measures’ to protect and preserve cultural expressions in situations where they have determined that these are at risk of extinction, under serious threat, or otherwise in need of urgent safeguarding.
Relationship with WTO Rules
A major point of contention during the negotiations for the new treaty was how its provisions would relate to WTO disciplines. Opponents, such as the US, saw its main purpose as an attempt to give additional legitimacy for the maintenance and possible expansion of measures – maintained by countries such as Canada, China, France, South Korea and many others – that restrict market penetration of foreign films and music, as well as other cultural products or services (magazines, audiovisual broadcasts, etc.). Its proponents considered it as a necessity to safeguard the survival of their cultural identity, language and traditions.
The convention has been ratified by 67 individual countries, as well as the European Union as a whole. The US voted against its adoption, arguing that the instrument remained “too flawed, too open to misinterpretation and too prone to abuse for us to support.” The US also stressed that the convention “must not be read to prevail over or modify rights and obligations under other international agreements, including WTO agreements. Potential ambiguities in the convention must not be allowed to endanger what the global community has achieved, over many years, in the areas of free trade, the free flow of information, and freedom of choice in cultural expression and enjoyment.”
The language regarding the treaty’s relationship with other international agreements is indeed ambiguous: on the one hand it affirms that parties will not ‘subordinate’ the convention to any other treaty, and on the other it specifies that nothing in it “shall be interpreted as modifying rights and obligations of the parties under any other treaties.”
Thus, should a WTO dispute arise regarding measures taken to protect the diversity of cultural expressions, a defendant in the case could refer to the rights accorded by the convention, while a complainant could evoke the clause that it does not modify the defendant’s obligations under other treaties. Non-parties, such as the US, would of course not be bound by the convention’s provisions at all. Legal scholar Joost Pauwelyn, however, has argued that the WTO “presumably would not wish to isolate itself from the rest of the international lawmaking world by closing its eyes to any legislative initiative agreed on outside its own building, be it consented to by the disputing parties or not.”
UNESCO Overwhelmingly Approves Cultural Diversity Treaty