Конвенция ЮНЕСКО об охране и продвижении многообразия форм культурного самовыражения.

2005 UNESCO related treaty

The Convention on the Protection and Promotion of the Diversity of Cultural Expressions is an international treaty adopted in October 2005 in Paris during the 33rd session of the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO). In response to the fears that globalization would lead to an increasingly uniform global culture, it allows states to protect cultural diversity by promoting and defending their own cultural industries. It also establishes international co operation to help protect the cultural industries of developing countries, including the creation of the International Fund for Cultural Diversity. It enshrined the view that goods and services created as cultural expressions have both an economic and cultural nature and so cannot be seen purely as economic goods. The convention also defines cultural industry and interculturality and calls for international co operation, especially to support the cultural industries of developing countries.

The concept of diversity of cultural expressions is the result of a paradigm shift in the way that culture is considered in international relations, particularly in the context of agreements aimed at liberalizing trade. It succeeds the concepts of cultural exception or cultural exemption that appeared during the 1980s. The awareness on the part of certain states of the impacts of the liberalization of economic exchanges on their cultural policies is the trigger for the emergence of the concept of cultural diversity and the need to protect the diversity of cultural expressions, particularly because of the strength of the Hollywood film market. The convention was born out of a desire to reconcile cultural diversity with increasingly liberal trade agreements. then under negotiation. The United States firmly opposed this, which led to the "failure of the cultural exception", an expression that reflects the impossibility of excluding the cultural sector from the reformed multilateral trade system. In that case, the panel rejected one of Canada's arguments that, because the content of Canadian and U. S. periodicals differ, the products are not similar and, therefore, may be treated differently by Canada. In the end, certain measures to protect the Canadian periodical industry were not adopted. One topic of negotiation is whether products with cultural value be treated like any other commodity. Some states answer in the affirmative, arguing that it is necessary to adopt a legal instrument that is independent of the WTO's multilateral trade system in order to recognize the dual nature, economic and cultural, of cultural goods and services. The recognition of this dual nature is reflected in certain bilateral or regional trade agreements that include cultural exemption clauses. The first agreement to contain a cultural exemption clause was the Canada US Free Trade Agreement of 1988. The application of trade rules to cultural products raises a particular problem. By making commitments in economic agreements, states agree to eliminate all forms of discrimination between domestic and imported cultural products. In doing so, they are gradually relinquishing their cultural sovereignty, that is, their ability to develop cultural policies and provide support for their own cultural industries, which reflect their identity. In this sense, the very foundations of free trade make it difficult to recognize the specific nature of cultural products, which are bearers of identity, value and meaning, hence the need to incorporate cultural exception and cultural exemption clauses (cultural clauses) into economic agreements. Although these clauses are multiplying, concern remains in cultural circles about the progressive liberalization of the cultural sector and the repeated characterization of cultural products as mere "merchandise". In fact, cultural clauses receive a mixed reception during trade negotiations. Some states consider them to be protectionist and therefore antithetical to the ideology of free trade, which favours open markets. The United States generally refuses to incorporate such clauses into the free trade agreements it negotiates. The concept of cultural diversity allows for a more positive perspective and a more positive approach to free trade. It allows for a balance to be struck between the economic benefits of opening up economies and taking into account the specificity of cultural products.

The Convention on the Protection and Promotion of the Diversity of Cultural Expressions is one of seven UNESCO conventions that deal with the four core areas of creative diversity; cultural and natural heritage, movable cultural property, intangible cultural heritage and contemporary creativity. some states decided at the end of the 1990s to move the debate to UNESCO. On the one hand, UNESCO's constitution, and particularly Articles 1 and 2, make it the appropriate international forum for this debate. On the other hand, the United States was not a member of this organization at the time (it rejoined UNESCO in 2003 when the negotiation of the convention was launched), which created a favourable context for the development of a multilateral instrument aimed at protecting cultural diversity. In 1998, the Action Plan on Cultural Policies for Development drawn up at the Stockholm Conference recommended that cultural goods and services should be treated differently from other merchandise. This action plan sets the stage for developments in cultural diversity from the early 2000s onwards.

The UNESCO Universal Declaration on Cultural Diversity was adopted unanimously by 188 member states on 2 November 2001, in the aftermath of the September 11 attacks. It affirms "that respect for the diversity of cultures, tolerance, dialogue and cooperation, in a climate of mutual trust and understanding, are among the best guarantees of international peace and security". It represents an opportunity to "categorically reject the thesis of inescapable conflicts of cultures and civilizations". In Article 8 of the declaration, UNESCO members affirm that "cultural goods and services [ ], because they convey identity, values and meaning, should not be treated as commodities or consumer goods like any other." In Article 9, the role of cultural policies is defined as a tool to "create conditions conducive to the production and dissemination of diversified cultural goods and services". This declaration is not legally binding. The desirability of negotiating a binding international legal instrument is set out in Annex II of the declaration. Several articles of the declaration are included in the Convention on the Protection and Promotion of the Diversity of Cultural Expressions.

Work towards the convention began in the fall of 2003, with a decision of the UNESCO General Conference. Fifteen independent experts participated in a series of three meetings to create a preliminary draft. This draft was distributed to member states in July 2004. It formed the basis for the intergovernmental negotiations from the fall of 2004 onwards to prepare the draft convention to be presented to the General Conference in 2005. The first intergovernmental meeting, held from 20 to 24 September 2004, set up the negotiating structure and expressed the respective views on the type of convention to come. Differences of opinion persisted regarding the purpose of the convention, its relationship with other international agreements and the level of commitment required. Some states, including the United States, Japan, New Zealand, Tunisia and India, questioned the need for such a clause. The need to incorporate such a clause was finally agreed upon. It would confirm complementarity and non hierarchy between the convention and other international legal instruments. This would become Article 20 of the convention. Canada responded by proposing that the preliminary draft be considered a draft convention to be voted on for adoption at the 33rd session of the General Conference, which it was. In advance of the General Conference, Condoleezza Rice, the United States Secretary of State, wrote to attendees, asking them not to sign the convention, which she said "invites abuse by forces opposed to freedom of expression and free trade".

The main objective for the convention is to protect and promote the diversity of cultural expressions. The convention highlights the fact that cultural creativity has been placed upon all of humanity and that aside from economical gains, creative diversity reaps plenty of cultural and social advantages. in a manner against a cultural relativism that may undermine universality of human rights. The intended beneficiaries to the convention include all individuals and societies. The convention lists several groups such as women, indigenous peoples, minorities, and artists and practitioners of developing nations as specifically intended to benefit. The convention creates several new concepts and uses similar expressions to some already known. As interpreted in the convention, cultural activities, goods, or services must result from creativity and have cultural content: symbolic meaning, artistic dimension or values related to cultural identity. "Cultural diversity" is interpreted both in terms of cultural heritage that is preserved, and in terms of diverse ways of creating, sharing, and enjoying art. This definition creates the link with the Universal Declaration on Cultural Diversity.

The section on rights and obligations is central to the convention. It focuses on rights, especially the rights of states to take action to protect their cultural diversity. Most of these rights are expressed as options ("Parties may ") rather than requirements ("Parties shall "). In article 5, the convention reaffirms the sovereign right of states to use legislation to promote and protect the diversity of cultural expressions. subsidies and other support for cultural institutions or for individual artists; and giving domestic cultural industries ways to produce, promote, and publicise their output. The obligation to promote cultural expressions is set out in article 7. Parties to the convention have an obligation to promote cultural expressions within their territory, giving individuals and society access to a diverse set of cultural influences from their own country and from around the world. Article 8 sets out the powers of a state to identify a situation where a cultural expression is in need of "urgent safeguarding" and to take "all appropriate measures". It requires the parties to notify the Intergovernmental Committee (created by article 23) of any such measure. The committee may then make appropriate recommendations. Articles 9 to 11 commit the states to sharing information transparently, to promoting cultural diversity through education and public awareness programs, and to working with civil society to achieve the convention's goals. Article 12 sets out the five objectives of states in relation to international cooperation. Article 13 sets out the obligation of the parties to integrate culture into their sustainable development policies at all levels. This echoes article 11 of the UNESCO Universal Declaration on Cultural Diversity, which describes cultural diversity as "a guarantee of sustainable human development". Article 14 provides a list of suggested forms of international cultural cooperation. These relate to the strengthening of cultural industries, capacity building, transfer of technology and know how, and financial support. Article 15 is the most explicit provision for partnerships between public authorities and civil society, especially to respond to the needs of developing countries. Article 16 contains one of the most binding commitments of the convention. It states that "[d]eveloped countries shall facilitate cultural exchanges with developing countries by granting, through appropriate institutional and legal frameworks, preferential treatment to their artists and other cultural professionals and practitioners, as well as to their cultural goods and services." The obligation to "facilitate cultural exchanges" rests with developed countries and must benefit developing countries. This is the first time that a binding agreement in the cultural field has explicitly referred to "preferential treatment". Preferential treatment measures can be cultural in nature (e. g., hosting artists from developing countries in artists' residencies in developed countries), commercial in nature (e. g., easing the demands of artists in developed countries), or commercial in nature (e. g., facilitating the movement of cultural goods and services) or mixed, i. e., both cultural and commercial (e. g., entering into a film co production agreement that includes measures that facilitate access to the developed country market for the co produced work). Article 17 commits parties to cooperate in situations of serious threat to cultural expressions of the kind mentioned in article 8. The International Fund for Cultural Diversity (IFCD) was created as a result of the demands of developing countries and is established under article 18 of the convention. It is funded by voluntary contributions from member states. This creates some uncertainty as to the sustainability of the funding and ensures that the establishment of the fund is based on the principle of "hierarchical solidarity" rather than "reciprocity". Developing countries that are parties to the convention can apply to the IFCD for funding for specific activities that develop their cultural policies and cultural industries. As of April 2023, UNESCO reports that 140 projects in 69 developing countries have been carried out with funding from the IFCD. In article 19, the parties commit to sharing data, expertise, and best practice for the protection and promotion of culture, creating a data bank maintained by UNESCO.

Article 20 explains that the convention is to be interpreted as complementary to other existing treaties, not overruling or modifying them. In article 21, the parties "undertake to promote the objectives and principles of this Convention in other international forums." The term "other international forums" refers in particular to the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO), the Organisation for Economic Co operation and Development (OECD), but also to more informal bilateral or regional fora or negotiating groups.

Article 22 establishes the Conference of the Parties, the governing body of the convention. This is composed of all the countries that have ratified the convention and meets every two years. Article 23 creates an Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions. This is composed of 24 parties elected by the Conference of the Parties from all regions of the world. Members are given a four year term and meet annually. These two bodies together act as a "political forum on the future of cultural policy and international cooperation". Article 24 requires the UNESCO Secretariat to assist both of them.

To date, 151 signatory states, as well as the European Union, have registered their ratification of the convention, or a legally equivalent process. Canada was the first party to ratify the treaty on 28 November 2005. The most recent ratifications are from Cape Verde (26 May 2021) and Pakistan (4 March 2022). A November 2007 meeting of delegates from 59 member states of the Commonwealth produced the Kampala Civil Society Statement, which made recommendations to the Commonwealth Heads of Government Meeting. One recommendation was that Commonwealth states should ratify the convention and work with civil society to implement it. Some Arab states, states in the Asia Pacific region, Russia and Japan have not ratified or implemented the convention. The United States refused to ratify despite actively participating in the negotiations and drafting. The main argument of their opposition is that cultural products are commodities in the same way as other goods and services. They argue that the benefits of free trade extend to cultural goods and services. The United States left UNESCO at the end of 2018 but officially rejoined in July 2023.

The monitoring framework is structured by four overarching objectives from the convention, as well as by the desired outcomes, core indicators and means of verification. The four objectives are: (1) supporting sustainable cultural governance systems, (2) achieving a balanced exchange of cultural goods and services and increasing the mobility of artists and cultural professionals, (3) including culture in sustainable development frameworks and (4) promoting human rights and fundamental freedoms. The monitoring framework is based on Article 9 of the convention. It is specified by the Operational Guidelines for information sharing and transparency. In order to respect this commitment, the parties designate a point of contact and must produce periodic reports every four years, starting from the date of deposit of its instrument of ratification, acceptance, approval or accession. These reports are examined by the Conference of the Parties in order to plan international cooperation by identifying innovative measures and targeting the needs of countries that could benefit. As of 2021, it was reported that just half the ratifying states have complied with their reporting duties; there are no penalties for failing to comply. The UNESCO Institute for Statistics (UIS) has worked to support the convention by creating a Framework for Cultural Statistics and establishing an Expert Group on Measuring the Diversity of Cultural Expressions.

UNESCO reports that "at least eight bilateral and regional free trade agreements concluded between 2015 and 2017 have introduced cultural clauses or of commitments that promote the objectives and principles of the 2005 Convention."

The convention was negotiated at a time when music and films were mainly sold on CD and DVD formats. The subsequent years saw the rise of online streaming media, meaning that cultural works could be exported from one country to another without a physical medium. This increased the risk that cultural diversity would be threatened as more people had immediate access to the cultural productions of particular countries. The convention was intended to be technologically neutral so that future advancements would not leave it outdated. The definitions in section III allow states to develop cultural policies for digital cultural products. However, this rapid technological change raised the question of how to interpret the convention's rights and obligations relating to online cultural works. The community responded in 2017 by creating and adopting the Operational Guidelines on the Implementation of the Convention in the Digital Environment.

The convention repeatedly mentions civil society — including non governmental organizations (NGOs), cultural professionals and cultural groups — as necessary for implementation of its desired changes. Civil society organizations are involved at several levels in the implementation and promotion of the convention. Although they cannot attend the Conferences of the Parties, they can attend, by invitation, the meetings of the Intergovernmental Committee; participate in funding; contribute their expertise; or receive grants from the International Fund for Cultural Diversity. A 2015 study found that many activities arising from the convention involved civil society, or partnerships between civil society and government, although fewer than half of the national reports mentioned involving civil society. It also found that the NGOs most involved in these activities were usually already well established and used to working with government, which tend to be organizations in the Global North. The authors conclude that there are successful cases of involving civil society in the convention's implementation but that the participating organisations were not yet truly diverse. In 2009, the Intergovernmental Committee identified three general reasons why, in some countries, civil society participation was less than expected: 1) an organisationally weak cultural sector; 2) an excessively top down approach by government and public bodies; and 3) poor communication between public bodies, civil society, and the cultural sector. Civil society includes UNESCO Chairs: professors whose research objectives are linked to those of the 2005 convention. The UNESCO Chair on the Diversity of Cultural Expressions, launched in November 2016, participates in the implementation of the convention and in the development of knowledge.

The convention has received both praise and criticism from academic sources. The Australian economist David Throsby argued in 2016 that the convention, as a legally binding treaty with many signatories, has achieved much more than the Sustainable Development Goals to advance cultural and economic development in a sustainable context. Reading the national reports on the implementation of the convention, he found that many countries have benefited by making the required policy changes. Evaluating the convention ten years after its creation, Christiaan De Beukelaer and Miikka Pyykkönen described it as "a useful and important instrument in the debate on cultural diversity" but warn that it is "not broad and sufficient enough to confront cultural diversity as a whole, including challenges concerning human rights and sustainability." Sociologist John Clammer praised the convention for highlighting the role of culture but said it "lacks a hard edged analysis or concrete policy proposals of how to address the very issues that it itself raises". Cultural policy scholar Johnathan Vickery warned that the democratic, pluralist values motivating the convention could lead to practices undermining those same values: that the document "can be used to legitimise and bolster current patriarchal, traditional, customary, superstitious or religious 'culture'". He described it as setting out a desirable democratic system of cultural governance without specifying how this could be achieved: "it is hard to see how many of the non democratic members of the UN Assembly could ever implement many of its Articles". In 2018, the Polish sociologist Dobrosława Wiktor Mach described the political support for the convention, leading to its rapid ratification by many states, as impressive. She said that the convention "has had a direct impact on current debates on culture and sustainability" but that the interpretation of cultural diversity that has been implemented is narrow – focused on the market for creative goods – compared to the broad language of the declaration. She observed that the International Fund for Cultural Diversity, being reliant on donations, "has difficulties making real change." According to Nancy Duxbury and co authors, although the convention mentions sustainability, it does not truly integrate sustainability requirements into its account of development. They drew a contrast with the 1996 Our Creative Diversity report by the World Commission on Culture and Development which considered culture not as a sector of the economy but in terms of the values and practices that define desirable futures. Reviewing the second global report in 2018, Barbara Lovrinić of the Institute for Development and International Relations observed that the reports show that countries have made progress and have come up with new ways to address the strategic issues of promoting cultural diversity, but that the stated long term goal of reshaping cultural policy was not yet being achieved. She criticised UNESCO for not promoting more public awareness of the 2005 Convention and the Sustainable Development Goals.