UNESCO Defends Cultural Diversity

UNESCO has recently committed its efforts to the adoption of a legal international tool to protect cultural diversity. Adopted on October 20, 2005, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions has been quickly ratified by many states, and has formally come into being on March 18, 2007. What are the most significant aspects of this multilateral agreement, signed by 75 states, as well as by the European Union?

  First of all, one needs to understand exactly the object worthy of protection, and the definitions supplied by the Convention are not fully satisfactory.  It applies to "to the policies and measures adopted by the Parties related to the protection and promotion of the diversity of cultural expressions" (article 3), where the latter are to be understood as "the manifold ways in which the cultures of groups and societies find expression" (article 4). As one can easily infer, the scope of application seems quite extensive, enabling states to intervene to protect most of the goods and services created by human ingenuity in film, fashion, design, cuisine.

  Thus it is understandable the US opposition to the adoption of a Convention that has uncertain legal boundaries, and warrants states ample powers of intervention, also beyond cultural goods and services stricto sensu.  The coming into force of the UNESCO Convention thus presents the problem of its integration with WTO norms, which conversely call for multilateral liberalization of the trade in goods and services.

  A concrete example: if a state, say France, decides to prohibit foreign programming of movies and songs beyond a certain percentage, or if it decides to protect its cheeses and wines from foreign competition, because they are believed to embody a sense of national cultural identity beyond mere economic value, it could in theory invoke the UNESCO Convention to justify such protection. But since these norms, likely to contradict WTO obligations, affect the goods and services of a country, such as the US, which have not accepted to ratify the constraints posed by the UNESCO Convention,  the latter will not be applicable, given that a basic principle of international law says that a state cannot be held legally bound to pacts which it has not given its consent.

  Thus, if the UNESCO Convention on the Protection and Promotion of the Diversity wants to be a safeguard against the risk that the richest states impose not only their models of economic development, but also their cultural models to the rest of the world, it will need to be supported by a larger majority of the international community.