Study day 5 years after: The UNESCO Convention on the diversity of cultural expressions – at critical crossroads? December 1, 2010 SESSION 1: INTERINSTITUTIONAL DIALECTICS (WTO & UNESCO) The UNESCO Convention - State of the Art Lilian R. Hanania

Why an international instrument on the diversity of cultural expressions? Search for a specific legal treatment for cultural goods and services (cultural and commercial nature) Need for a « cultural counterpart » for trade agreements, outside these agreements and especially the WTO. Difficulties: At the multilateral level (WTO) At the bilateral and regional levels

Where are we now? Convention adopted in October Parties 5 years later. Very few binding provisions. Cooperation aspects specificity of cultural goods and services. Article 20 of the Convention (Relationship to other instruments): Does the Convention offer the « cultural counterpart » we were looking for? How can it influence trade agreements in concrete terms?

The Convention does not (and is not intended to) block trade exchanges The Convention has no protectionist objective Cultural policies and measures may encourage cultural exchanges from a commercial perspective, according to the principle of openness and balance. Trade agreements continue to apply (dual nature of cultural goods and services); Trade and culture debate : Trade obligations : more binding formulation stronger dispute settlement mechanisms. The Convention legitimates cultural policies and measures that may be in contradiction with international trade obligations adopted by the Parties.

How does the Convention affect trade agreements today? 2 situations: How can the Convention influence trade dispute settlement mechanisms ( e.g. DSB at the WTO)? How can it influence international trade negotiations ?

How does the Convention affect trade agreements? (1/2) - Dispute settlement WTO judge = « trade judge » but WTO law is not isolated from international public law. It still seems quite difficult... 2 situations : 1. All the Parties to the dispute are Parties to the Convention 2. The dispute also concerns non-Parties to the Convention, e.g. China – Audiovisual services (DS363)

How may the Convention affect trade agreements? (2/2) – Trade negotiations Most important effects: political effects, which depend on the political will of the Parties and balance of power in the negotiations. The Convention may politically support States that do not wish to adopt new trade obligations which they consider as being in contradiction with their rights and « obligations » consolidated in the Convention.

Which way forward? (1/2) In the WTO... During negotiations: maintain Members policy space in the cultural area In dispute settlement procedures: strengthen cultural considerations vis-à-vis economic ones

Which way forward? (2/2) Outside the WTO... In general keep a dynamic process; strengthen the visibility, legitimacy and authority of the Convention How? Proposals regarding the proliferation of bilateral and regional agreements

Sources: Lilian RICHIERI HANANIA, Diversité culturelle et droit international du commerce, Monde européen et international, CERIC, La Documentation française, 2009, 475 p. For a new European Union external cultural strategy - Communication by France, December 2009 ( culturelle_1031/colonne-droite_1695/strategie-culturelle-exterieure-union- europeenne_20100/pour-une-nouvelle-strategie-culturelle-exterieure-union- europeenne_80488.html).