[The following notes of oral exchanges at the session were taken to help identify speakers and otherwise facilitate review of audio recordings. They have not been compared to those recordings and should be understood to provide only a sense of what was said. In other words, they are not formal transcripts, and they may contain inaccuracies.]

Speakers are identified by their initials in the transcript. For a full list, click here.

Session 4: Cultural diversity and the draft UNESCO convention

NS – Dealing with cultural diversity, that is, the draft of the UNESCO convention on cultural diversity. I will make general observations as opposed to talking about the legal structure. This is perhaps an important topic for a theme. There were two ideas from yesterday – definition as property, legal relations between individuals; and as patrimony, shared, evocative material seen as inheritance. Diversity opens the question of heritage as patrimony. Heritage is tied to the origin of the nation state. The structure of the administration of heritage owes everything to the structure of the nation state. As each state was emerging, it needed, for example, a railroad and a system of monuments – historical pageants in stone in each country that comprises a narrative. [This is] the interface between material remains and communication interface. It is ancient and teleological: it makes the nation state the outcome of human history. Cultural diversity – everyone talks about it but hard to deal with it. [Instead?] there are attempts to teach national narratives to widening groups within the nation state. The reality of demographics means two problems for cultural diversity.
1. Indigenous peoples – the relation between traditional cultures and dominant cultures. There is something that hasn’t been dealt with – the increasing problem of diasporic populations. This poses a direct challenge to way heritage is normally done – the idea that a bounded culture is tied to stability and continuity in a certain place. But this view doesn’t match the urban landscape of cities across Europe. Take the case of minority heritage within Europe – Jewish and Muslim populations. [On the other hand], there are the national stories and traditions in Europe. There has been an attempt recently to be more inclusive – for instance, the Museum of Gypsy Life, but such things really don’t affect the national story and are very superficial. The French national story – as told through its monuments, its immovable heritage – persists; it’s making room for other stories hasn’t happened.
2. Difficult or unpleasant heritages challenge both concepts of property and patrimony. For example, the pile of children’s shoes displayed in Auschwitz – are they commodified cultural property? Are they patrimony? Neither: they are heritage. [Return to Synopsis]
This raises the issue that is same as the UNESCO World Heritage Center/List. Fact is, [the list] is administered by member states – they determine the kinds of policies that enforce cultural diversity. But this presents a basic contradiction, because the coherence of nation states depends on homogenization. Cultural diversity is potentially divisive. The convention nowhere deals with the conflictual nature of cultural diversity. [It offers] only slogans; [this] ensures that cultural diversity can never really exist. [It leaves it] up to good will of states like Rwanda to ensure cultural diversity between Hutus and Tutsis. [Return to Synopsis]

SK – I know mostly about human rights law within the field of international law. Politically and professionally, what I’ve really been working on is IP. The U.S. is the only country in the world that has a private organization that manages rights clearance. It is bizarre that our 501c3 speaks for the U.S. The board is only about one thing – property rights – and the people on the board are only concerned with amplifying their power as rights-holders. They are unambiguous about what they think is at stake. In U.S., the non-profit, cultural community is powerless – except to the extent that indigenous peoples (and museums) have started to see themselves as rights-holders. This is the relevant context for this treaty. What nation-states want, [becomes a] treaty. But also, what nation states want derives from what corporations want, and indigenous peoples impact that. [Return to Synopsis]
Camel on this International Herald Tribune article: convention that protects minorities, shame if commodification. Merryman: the preservation of [what is] unique[ly] valuable is important texture. But: other goods have claims. And but: nurturing is the way to protect – otherwise it sets unique cultures against one another rather than having them move forward together.
The analogy of cultural diversity to biological diversity is central to the logic underlying the convention. It is an interesting question whether it is applicable; it is a serious idea, at least. There’s a lot on freedom of cultural expression, that the greatest number of individuals may have a voice. But this is crucial: “the vital role of the creative act, work of artists whose work needs to be endowed with IP” [read from the convention].
Canada and France support the treaty for commercial and political reasons – economic protectionism. In part, this is a reaction to dilemmas created by WTO and TRIPS. The cultural exception is an economic exception, not a cultural one. Looking at the reaction of the U.S.: [took minority position in the vote that ended] 148-2. What L. Oliver [U.S. ambassador to UNESCO] had to say – that everyone makes this into anti-Americanism but it really represents the U.S. standing for freedom. This is no sillier than what the French say. The operative bottom line is intellectual property. It is too simple to say that IP is the wrong way to go because of time-value. In the real world, IP is about the consolidation of major economic interests – of, e.g., Time-Warner. That’s not going to change. The political will of the U.S. will prevail. If we’re serious about cultural protection, we need to think about it in political terms. [Return to Synopsis (the problem of uniformity of expression)] [Return to Synopsis (footnote 2)]

AB – Please outline what TRIPS is.

SK – […]

RH – Trade related aspects of IP rights.

RP – It is basically the WTO but differed because it obliged you – this is a powerful thing – you couldn’t dissent from anything. TRIPS required you to have an IP regime that reflected the rest of world.

KS – Every state.

RP – The point in Davis’s piece.

RP – [shows magazine “Walrus”] This is a magazine for the chattering classes. [I am using it] to tell the story of a trade impasse between the U.S. and Canada. [It starts from] split-run editions of magazines. The geographical proximity of the two economies means it’s easy for the U.S. to transmit goods and services into Canada at very little cost. Magazines in Canada are dominated by Sports Illustrated, etc. – leading U.S. periodicals. These take all the advertising dollars in Canada – it makes it difficult for Canadian magazines to get advertising money. So, typically, Canadian government assisted [Canadian magazines]. [It used] a number of strategies to enhance the viability of these magazines – subsidized postal rates, it gave tax advantages to Canadian magazines, it attempted to put quotas on foreign magazines. This example is typical of Canada, [and] it is probably a violation of the WTO. The U.S. took Canada to court and won. Everything Canada did was ruled to be contrary to international norms about free trade. Canada is usually a good citizen about obeying WTO findings. Canada asked the U.S. to give them time to change back; they staggered the opening of the market. Canada’s position was that it was not an economic issue but a cultural one. For the U.S., media is purely an economic issue; from the Canadian, French, Brazilian perspective, it is issue of cultural protectionism – but that’s okay. Two ships passing in the night.
On the Diversity Convention – two problems.
First, the parameters of what it’s trying to protect are unclear – it is strangely worded if purports to be a treaty (definition). Second, the enforcement issue is a major practical problem.
On [the question of] definition. Article 2 [states that] the convention can’t be used for anything that is an infringement of human rights. But this is unclear. Are specific indigenous norms that might violate rights to be protected? [Return to Synopsis (definition)]

AB – The author of the article is pregnant.

RP – About Article 2 – are [its] goals viable without financial support? Canada tried to protect [its cultural difference]. But most countries don’t have the financial resources to thus protect themselves.
The question of where [the spheres of] culture and business end and begin.
On enforcement: the WTO is striking because of the efficacy of its enforcement provisions. The system has been in place since 1947. It includes an appellate level. Disputes are dealt with expeditiously. It works well because big issues aren’t taken for dispute resolution because people realize that [some particular example] is too big an issue for adversarial settlement. But split-subscription magazines are taken to it. Recently, [it was] forced to address non-economic issues, e.g., environmental or cultural. [It] does speak to environmental concerns. [Return to Synopsis (enforcement)]

MC – In the WTO?

RP – Yes, actually the GATT. The ‘47 agreement was on tariffs or trades. When [the WTO?] came into effect, it didn’t dismantle GATT – yes, institutionally, but not the logic of GATT. The WTO is in a difficult situation, as the price of success – the growth of global economy. But it has had to address exceptions – environmental [ones]. There has never been a case on the cultural property exception. The point is: WTO procedure necessitates experts on trade laws to ascertain the parameters of exceptions to free trade. So develops proportionality, etc. These interpretations of the exception tend to favor free trade. [This is potentially] invidious because non-advocates are establishing parameters for the environment or for indigenous rights. The issue isn’t the diversity convention; it’s whether or not the meeting in Hong Kong will craft a broader cultural industry exception to give international legal legitimacy to the position that Canada and France take.
Enforcement: international agreements – e.g., free trade – are based on reciprocity. [Consider] the WTO as a successful free trade organization – but trade is not entirely free. The WTO wants only to manage trade and, where possible, free it up. Culture needs to be thought of in the same way. One side wants to protect culture, the other wants to open it up – like protection and free trade. The thing is: what will be the compromise? There has to be reciprocity. The U.S. looks on these sorts of things as violation of U.S. sovereignty. The same form of resolution is the only one that will work – a compromise that sees certain kinds of cultural protection as deserving a place, and others kinds not. The present treaty fails in that respect. [Return to Synopsis]

SK – One footnote on creative industries. These are important because in North America, Europe but also increasingly, e.g., India, the importance of IP and cultural property [lies in the fact that creative industries are] seen as a growth sector in economy. There are many international rules about the maximization of income from creative industries. So we should be aware that when we talk about the draft convention, this is another way in which culture has a different meaning for different players – not the anthropological sense of culture. [Return to Synopsis]

RH – When I wrote on cultural policy-making in Quebec – the gradual transformation of a high-culture definition of culture to an anthropological definition of culture. I started talking about patrimony or culture – talking about high-culture, “art”, science, education. The kinds of things we imagine to be the products of specific institutions and traditions. Over time, anthropologists saw themselves as battling the notion of high culture and they popularized the notion that everything was culture. For bureaucrats interested in expanding their domain, this works well. In the UNESCO document, it is whole-culture in the anthropological sense. But when the shit hits fan, it is about products that look more like high-culture, art, opera-house culture. In various fields that talk about culture, there is this tension between culture-as-art and culture-as-life. So the legal and anthropological continue to do battle.

NS – In that battle between high and anthropological culture – when something becomes commodified, it goes into that high culture realm. The connoisseur’s treatment of popular culture in the form of collections makes that transition. So where this takes us: it is not just bureaucrats reaching out, but structures of commodification reaching out, making everything culture.

RH – [I want] to question [the analogy of] high vs. anthropological culture and commodified culture vs. non-commodified culture. Not in every case does commodification turn something into high culture. Cf. exemplary vs. representative. When museums objectify something as representative, it is the commodification of something as low culture. You can objectify the everyday, the anthropological, and even commodify it. There are 3 dichotomies: high/low, commodity/non-commodity, elite/exemplary.

DL – What I’m interested in is ideas of art and high – what is valuable also plays into conflicts between culture. Cf. James Jackson Jarvis, a mid-19th-Century U.S. art critic: he talked about how art was only western – or at least only high civilization, and this meant the West. He said, take, for example, Inca and Mayan culture – gold ornaments – these things were not art, as proved by the fact that the Spanish melted them down into bullion. [This constitutes] proof because Europeans – who understand art – didn’t see it as art. This illustrates a tension between definitions that [we?] are talking about in the UNESCO convention. Something is always special if it is defense of a particular cultural community. Always known to be art if seen by someone else.

HP – An example from South Korea and Japan of why government protection policies don’t work. In reaction to Japanese domination during the colonial period – [in which] 3 generations of Koreans were forced to learn and speak and write, etc. in Japanese – [in the] 30 yrs of military dictatorships after the war, [in order] to justify the regimes, [Korea] banned the import of all Japanese culture, films, cartoons, magazines. But it would allow high culture – Kurosawa films, for example, were let in. When […] was president in early 90s, [he] opened the market. But those interested in Japanese pop culture [had been] able to smuggle it in. So, when the market opened, no one made any money because the importing was already going on. Now it is the opposite: Korean films are booming all over Asia. Imposing protectionism from the top has never worked.

JN – A question about the reach and enforcement of the diversity convention. There is some reach – e.g., the Washington Post article says it would sanction legislation to require dubbing or subtitles in native language. But also – given that WTO, GATT especially, is seen as opposing piece of legislation, and that provisions of GATT will prevail under diversity convention – can we say that whenever diversity convention conflicts with GATT, GATT will prevail? Is there room for dialogue?

RP – The short answer is, no. Reference to Vienna convention. It is out of jurisdiction. The WTO would say that there are a lot of conventions out there – e.g., sea, ozone layer – but we don’t have jurisdiction as judges to try and reconcile the treaties. The diversity convention is simply inadmissible in the dispute resolution [process] of the WTO. Some things show a leavening of WTO rigidity – there is a new receptivity to amicus briefs in tribunal hearing of the WTO. We will hear from an interested party; [but] we won’t let you know whether we’re going to read it. What would have to happen – and has with NAFTA, where provision says, if provision of three certain conventions conflict with NAFTA, those conventions will prevail.

JN – I had in mind not formal conflict but the kinds of issues related to the environment. Where WTO has […]

RP – Of course, national legislation is always involved in a dispute, but international agreements can’t be taken into account. For example, Canada didn’t want ships catching salmon off the coast of Canada and process fish on shore in Canada – attempt to revive canning industry. The U.S. said it was a violation of trade laws.

NS – The question I still don’t understand: do you think that the objectives set out by the convention – that cultural diversity is not only a defining element of humanity but valuable [in itself] – is it defended by the convention? Ought it be? Is it a bogus idea, or a good one defended by a flawed text? Cultural heritage is the trajectory of things that lead to Time magazine?

RP – The lawyer’s answer is that your rights are only as good as your ability to defend them. This international agreement is very soft because the language is vague; this devalues it as instrument. [Return to Synopsis]

KS – WTO.

RP – There isn’t a god-like body saying cultural diversity.

KS – This isn’t possible. Once we have a treaty like the WTO, members can’t derogate.

DL – What’s the virtue of a soft treaty?

RP – Soft instruments are sometimes the beginning of hard instruments.

DL – There is the hope that it will lead to something more. [Return to Synopsis]

LP – If you wonder about cultural diversity, you need to be aware of the 1995 World Culture Report – the chapter on why cultural diversity is as important as biological diversity. The argument from anthropologists [is that] the technological society is now perhaps not sustainable. We will need referencing to other ways of life, like hunters and gatherers. [Return to Synopsis]
On enforcement: it is a soft a instrument – perhaps declaration better than convention – there was a declaration on the subject in 2003 but Canada and France wanted it to look stronger. For enforcement, its main virtue is as negotiating tactic if something is taken to the WTO, [to argue] that things have changed. The final clause about settlement gives priority to negotiation. [Its drafters] were perhaps also thinking about the ICJ. [You are] far more likely to get diversity help from the ICJ than the WTO. This is a step with pragmatic politics behind it and a theoretical justification in the last 10 yrs of discussion at WTO. [Return to Synopsis]

MB – The biological metaphor is critical – mass culture, memes, swamping out local culture. The issue for me is not high-low; the issue has to do with transportability of culture units. There are all kinds of things in culture that don’t travel – for example, kinship terms stay local – but new technologies increase the transportability of cultural elements. Sometimes [there is a] business significance. It creates a crisis of real vs. facsimile, of authenticity. Easier for lawyers to get around. [Return to Synopsis]

NS – Are we arguing for equal chance for kinship terms to get on market?

MB – No , that American kinship terms don’t influence Malaysia. Protect the integrity of local memes by excluding competing and more powerful memes.

NS – It isn’t cultural diversity for itself but standby in case of catastrophe.

LP – The idea is to keep philosophies alive, to learn from – e.g., learning another language – not just a standby.

RP – The cultural industry exception – but there is a long-standing practice in trade agreements to create an exception for developing countries – give them longer to comply with rules, etc. Rather than have a cultural industry exception that tends to help the powerful, perhaps exclude measures to protect dominant cultures.

MC – The discussion is displaced. The opposition between high and low excludes important ideas. The UNESCO report about common heritage: it is not binding on anyone, but this is the first time that a convention, a law asserts the obligation of states to respect cultural diversity. This convention has a number of statements that would not have been possible in countries in Africa, Latin America, in Asia, given chauvinistic positions there. The political repression of national minorities starts with demonizing their culture. Affirming the rights of minority cultures is a very important step forward. Many countries which signed the convention will become accountable to its logic – there is new room and new territory for the political affirmation of democracy, etc. I want to emphasize this rather than get bogged down in mercantile dispute.
Where do we come out? NS is correct to say that diversity is in great peril when the nation state is in charge of heritage. What is the solution to that?

NS – The definition of culture is still left to the nation states. If actually the document allowed minority groups to come to international courts, [that would be] good; but the principle of conflict within traditions is not stressed. It implies instead that the diversity is the diversity of nations. Nothing recognizes that demonization of internal culture is dangerous to diversity. It assumes that culture is co-terminus with states.

MC – No, I read the document differently. There is nothing in the convention that prevents its interpretation as supporting internal diversity within the nation state. It will be a tool for minorities; it will happen. When the human rights declaration was adopted during the Cold War, it didn’t define rights within the iron curtain, but it still empowered opposition because signatories became accountable. [Return to Synopsis]

RP – Others to speak.

LR – Anecdote and observation. [I was] giving a talk to Princeton alumni, and someone removed “culture” from the title of the talk because alumni would think it was high culture – a culturectomy. Note the advertisement about Dior next to the Washington Post piece. I am struck by the unexamined and inconsistent set of assumptions in convention. It seems to have no trust in humanity to preserve [culture]. Analogies to biology – natural selection, fitness – there is no explanation of mechanism. [The idea] that globalization is rampant, silly idea of great maw.
My sense of culture [is that] we are constantly creating categories and putting things together in new ways. If your underlying assumption is that the meaning of things will become all the same while you are asserting that diversity defines humanity, you must think through the assumptions and the theory. The journal can be used to make explicit the implicit in these arguments. Underlying assumptions may be contradictory and they are not getting addressed. What MC [on political] and SK [on economic] say are important – but they are passing one another and building on different assumptions.

PF – I agree with MC that [the convention is] important. Used by several groups to defend their standpoint against a nation state thanks to discussion on diversity at UNESCO – it led to local legal changes. It applies to diasporas. In Brazil, for example, Korean and Jewish people are claiming that they must preserve their diversity, for example, linguistic [diversity]. In the case of Latin America, [where there were] several years of right-wing dictatorships, [during which] people disappeared – I’m working in clandestine cemeteries with relatives of the disappeared, who are keen to cooperate with archaeologists. This is at odds with a nation that proceeds from dictatorship to democracy. UNESCO is hopeful.

AB – I share hopes of what MC says. [But] there’s a disjunction between the long preamble and the values it is espousing and the actual nitty-gritty of the mechanisms, etc. There’s no way that, without goodwill [or] a broad-thinking director, minority or diasporic rights will be secured. It is administered by inter-governmental committee; it rotates between […]. It is made up by national ministers – where are the teeth to allow for representatives of oppressed minorities?

MC – It’s called civil society, [which can] make public the discrepancy between principles and actions.

AB – […]

MC – [something mentioning Jesus]

AB – But there’s trouble with the convention. Look at the definition section – it is difficult to separate out [its parts] as definitions – cultural content, expression, etc. are differentially defined. There’s a lot of overlap here. It’s an open definition that allows for the notion of minority groups. But the actual rights of parties or agendas promoted [contradicts this]. For example, in developing countries, it supports development of cultural industry. That is not a disempowered minority.

PO – I agree with Alex. The soft law is so soft that it will have no weight. I much prefer the universal declaration on cultural diversity of a few years ago. It is simpler and has equal weight with this.

DL – To follow up on MC – the justification of cultural diversity. Assumed but rests on the analogy with biological diversity, where it is assumed that there are scientific principles that justify enforcement. Liking two things (biological and cultural diversity) doesn’t make them the same. The differences are consequential. Consider the fact that it is possible to think of kinship being distributed around the world as Mormons do and as US Indians are forced to go back to blood quantum standards. It’s too popular in US to claim to be Indian. Biological diversity is different from cultural diversity – genetic, species, ecological diversity at multiple scales. None of this has much resemblance to cultural diversity. One important difference is the obvious ability of culture to form very rapidly new combinations, hybrids – strangers effectively develop sub-cultural systems, [which are] not the same [as the original ingredients of the systems?]. The creation of culture acts at same pace as the destruction. But we do find; protective instinct that helps the weaker survive takes large range beyond that which is protected by convention. For example, the formation of a creole that allows difference but communication. But the major difference is that the notion of cultural diversity is something we like to valorize on the basis of its being fair – those humans have some right to remain as they are, as different, as what they want to be. Such rights are not normally accorded to trees or animals. The support for cultural diversity rests on ideas of fairness and equity that rest on human rights – not on biological diversity. There are other differences: is it better to know more languages always or only two or three? Is more diversity always better – easy to see why in biology it is useful, but harder for cultural diversity. [Return to Synopsis]

CL – Diversity frames problematic categories of cultural heritage that don’t fit in binary oppositions that RH suggested. For example, NS’s children’s shoes at Auschwitz. [Consider] the work of a Polish philosopher who writes about collections – he suggests objects are interlocutors between the invisible world of memory, etc. and the material world of present. That’s why it is difficult to capture objects within meanings of diversity and heritage. This is an interesting thing to think about – shifting categories.

NS – And they deserve to be discussed in the work of this society because they are so important. I don’t know their status in legal terms or as heritage. But they are hugely important in the field.

DS – Delivering keys.