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This round in the cultural protection fight goes to Canada by Michael Byers
This round in the cultural protection fight goes to Canada by Michael Byers

October 21, 2005
From the convention banning land mines to the International Criminal Court, Canada has been good at making international law. Yesterday, we had another success: a convention on cultural diversity to help defend cultural industries against globalizing forces emanating from within the World Trade Organization. In 1997, the WTO ruled that Canadian content requirements for magazine advertising were illegal, raising the prospect that quotas and subsidies protecting Canadian culture would be stripped away. In response, Canada's film, TV, music, theatre and publishing industries submitted a report to Pierre Pettigrew, then international trade minister, recommending that we negotiate a treaty giving countries the right to take protectionist measures in the cultural domain. Sheila Copps, then Canadian heritage minister, had already organized an international network of culture ministers and funded the formation of a parallel non-governmental association; the proposed convention was the perfect cause to champion. Canada's cultural industries, meanwhile, created the Coalition for Cultural Diversity and encouraged similar groups elsewhere; there are now 30 national coalitions worldwide. Industry representatives and government officials began drafting a convention that could provide a framework for international negotiations. The draft was completed in September of 2002, the same month that the United States announced it would rejoin the United Nations Educational, Scientific, and Cultural Organization. UNESCO was about to gain greater relevance, making it the obvious negotiating forum. Mr. Pettigrew and Ms. Copps's officials mounted a diplomatic offensive at UNESCO headquarters in Paris, and forged alliances with countries such as France, China and Brazil. Liza Frulla, who succeeded Ms. Copps at Canadian Heritage in July of 2004, became an enthusiastic proponent of the draft convention. Mr. Pettigrew, meanwhile, moved to Foreign Affairs. By the time experts from UNESCO countries met for final discussions in June, Canada's efforts had ensured a recommendation that the draft convention be adopted at the organization's annual conference this month. That's what happened yesterday. All that's needed to transform this into binding international law is ratification by 30 countries -- and that seems certain within the next three years. The cultural diversity convention has already been criticized for lacking a binding dispute-settlement mechanism, and thus being subordinate to the WTO. But the convention's drafters never sought a binding mechanism because the WTO agreement in question (the General Agreement on Trade in Services) operates on a "bottom up," rather than a "top down," basis. Instead of automatically requiring non-discriminatory treatment for all services regardless of their country of origin, national governments indicate which specific services they are prepared to open up to competition, provided reciprocal concessions are received from other states. This offer-and-acceptance process creates a web of bilateral deals that liberalize select services between discrete pairs of countries, under the WTO's general umbrella. Ottawa says it will never subject trade in cultural services to non-discriminatory treatment, but this blanket stand will become more difficult to maintain over time, because the "bottom up" approach is based on the premise that countries will gradually work toward ever greater liberalization. The cultural diversity convention does not try to challenge the WTO directly, but to buttress the position that culture differs from other economic sectors. This approach avoids the legal problems that can arise when a new treaty includes rules that conflict with WTO obligations. Until this year, U.S. officials had assumed that the lack of a binding dispute-settlement mechanism would render the convention toothless. When they realized that the convention's purpose was political rather than legal, they fought hard to delay or at least water it down. The U.S. now argues that UNESCO has no mandate to adopt a convention that is primarily about trade; that trade barriers are not a valid way to promote cultural liberty because "such measures reduce choices"; and that the convention could have a negative impact on further WTO negotiations. Left unsaid is the fact that U.S.-based companies such as Disney and Time Warner already account for cultural exports of more than $80-billion (U.S.) a year and stand to benefit most from free trade in cultural services. In June, at a WTO meeting on trade in services, the U.S. expressed "great concern" over efforts to create a general exclusion for audiovisual services, which is where the bulk of future profits lie. But the U.S. effort to block the convention started too late; the momentum established by Canada could not be overcome. The U.S. could have lobbied hard for Paul Martin to intervene. But the convention has attracted much support in Quebec, where protecting cultural diversity is almost an obsession. A change in position would have provided the Bloc Québécois with a campaign issue. Even in English Canada, concessions on trade in cultural services would have seemed odd, given Ottawa's defence of the softwood lumber industry. So, let's salute the negotiating success of our ministers, bureaucrats and cultural industries. International lawmaking requires vision and a willingness to play as a team. It's a Canadian game. Michael Byers holds the Canada Research Chair in Global Politics and International Law at UBC.
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