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Max Planck Encyclopedia of Public International Law [MPEPIL]

Cultural Diversity

Sabine von Schorlemer

Indigenous peoples — Minorities — Development, right to — Immigration — Sustainable development — Intellectual property — Developing countries — Services — Travaux préparatoires

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A. Introduction

1. Background and Development of the Concept

Cultural diversity as a general concept has some early roots in the United Nations (‘UN’) system, most notably in the establishment of the United Nations Educational, Scientific and Cultural Organization (UNESCO). Since its foundation in 1945, UNESCO has aimed at ‘preserving the independence, integrity and fruitful diversity of cultures and educational systems of the States members’ (see Art. 1 (3) UNESCO Constitution). In the Mexico City Declaration on Cultural Policies (1982), UNESCO Member States declared that cultural identity and cultural diversity are inseparable (at para. 5). Another milestone in the development of the concept of cultural diversity is the UNESCO World Commission on Culture and Development Report ‘Our Creative Diversity’ of 1996. Being a major project of the World Decade for Cultural Development (1988–97), the report had a strong focus on creative potentials regarding the concept of cultural diversity as part of the overall notion of sustainable development.

The Human Development Report 2004 ‘Cultural Liberty in Today’s Diverse World’, edited by the United Nations Development Programme (UNDP) (UNDP Human Development Report 2004; Cultural Liberty in Today’s Diverse World [OUP New York 2004], and several resolutions of the UN General Assembly (‘UNGA’) also had a significant influence on the development of the concept of cultural diversity. In its resolutions on human rights and cultural diversity the UNGA expressed its determination to prevent and mitigate cultural homogenization ‘through increased intercultural exchange guided by the promotion and protection of cultural diversity’ (eg UNGA Res 62/155 [18 December 2007] GAOR 62nd Session Supp 49 vol 1, 384 para. 5). Furthermore, in the 2005 World Summit Outcome heads of State[s] and governments recognized the ‘importance of respect and understanding for religious and cultural diversity’ (UNGA Res 60/1 [12 September 2005] GAOR 60th Session Supp 49 vol 1, 3 para. 14).

A more specific and more detailed elaboration of a concept of cultural diversity became apparent for the first time on a universal level when the non-binding Universal Declaration on Cultural Diversity (‘Universal Declaration’) was adopted unanimously by 185 UNESCO Member States in 2001. Since then the Paris Organization has continued its efforts to analyse cultural diversity in all its aspects and in different areas (eg languages, education, communication, creativity). In 2005, the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (‘CCD’ or ‘Convention’) was adopted (for details see below). The CCD addresses exchanges between cultures and aims to preserve their specificities. By recognizing the sovereign rights of States to conceptualize their cultural policies, and by demanding the integration of culture in development policies, the CCD strengthens the cultural dimension in the process of market liberalization. At the same time, the CCD promotes international co-operation, cultural exchange, and multilevel interaction of various stakeholders (cf paras 48–54 below).

Other important developments took place in the European region. The Council of Europe (COE) in its 1992 European Charter for Regional or Minority Languages stated that the protection of regional and minority languages contributes to the ‘building of a Europe based on the principles of democracy and cultural diversity within the framework of national sovereignty and territorial integrity’ (preamble). Furthermore, the Charter of Fundamental Rights of the European Union, which was proclaimed in December 2000, provides in its Article 22 that ‘[t]he Union shall respect cultural, religious and linguistic diversity’. This was seen as a ‘minority protection clause’ providing minorities with an ‘enforceable right to non-interference on the part of the European Union in order to preserve their minority characteristics’ (Arzoz 145).

2. Notion

Cultural diversity is ‘above all a fact’ as was highlighted in the 2009 UNESCO World Report ‘Investing in Cultural Diversity and Intercultural Dialogue’: not only is there a wide range of distinct cultures, but cultural diversity has moreover become a ‘major social concern, linked to the growing diversity of social codes within and between societies’ (ibid 3). In general, ‘cultural diversity’ relates to the functioning of societies in times of economic globalization.

In a broad sense, the notion of cultural diversity makes positive reference to different cultural traditions and values between or in societies. In this line of reasoning, for example, the COE regards cultural diversity as a ‘source and a factor, not of division, but of enrichment for each society’ (preamble COE Framework Convention for the Protection of National Minorities [‘FCNM’]; Minorities, European Protection). The strong creative potential of this concept was highlighted in the Universal Declaration on Cultural Diversity (2001) of UNESCO which defines cultural diversity as a ‘source of exchange, innovation and creativity’ (at Art. 1), widening ‘the range of options open to everyone’ (at Art. 3). Likewise, the CCD emphasizes that cultural diversity ‘creates a rich and varied world, which increases the range of choices and nurtures human capacities and values’ (preamble CCD para. 3).

In a more specific sense, the protection and promotion of cultural expressions moves into focus. Within the specific context of the CCD the concept of cultural diversity focuses on empirical cultural manifestations and their production, distribution, dissemination, and enjoyment. Cultural diversity is referred to as the ‘manifold ways in which the cultures of groups and societies find expression’ (Art. 4 (1) CCD), while in the understanding of the CCD cultural expressions result from the ‘creativity of individuals, groups and societies, and have a cultural content’ (Art. 4 (3) CCD). On a practical level, these expressions also include diverse modes of artistic creation, whatever the means and technologies used. This approach offers the chance to address the topic of diversity of cultural expressions under the law of the World Trade Organization (WTO) with a focus on cultural goods and services, and the relationship between international trade and cultural diversity, respectively the interaction between trade and cultural law, becoming an important issue (see eg Shi).

In this vein, cultural diversity is a concept that offers a multidimensional approach to complex queries concerning cultural differences and cultural identity, cultural content, and artistic creativity. In the light of flourishing cultural industries it is a concept that is particularly challenging for non-State actors. New partnerships and alliances, especially in the field of the promotion of the diversity of cultural expressions, are not only being developed within the private sector and local or national governments, but also between artists, cultural producers, and private sector organizations. In this context, the 2009 UNESCO 2nd World Report on Cultural Diversity, which was drafted by an advisory committee of 15 experts, drew upon an inventory of knowledge and identified best practices to cover all aspects of cultural diversity.

3. Cultural Diversity and Cultural Relativism

Cultural diversity is related to the ‘recognition of distinctness’ (Taylor 39–40). It aims at protecting distinctive cultural backgrounds as part of the collective identity of certain groups (Group Rights). Acceptance of cultural distinctness and cultural differences in international law raises some delicate questions: to what extent shall cultural arguments and interpretations be acknowledged—for example when they are expressed by way of reservations of States Parties to human rights treaties? Is the well-balanced uniform standard of the universal protection of human rights thereby being put at risk?

10 In the past, the concept of universality of human rights has been challenged in multiple ways, not least in the name of ‘value pluralism’ and ‘cultural relativism’. While Art. 2 (2) Asian Human Rights Charter emphasizes universality, Art. 2 (3) of the same document states that ‘[n]otwithstanding their universality and indivisibility, the enjoyment and the salience of rights depend on social, economic and cultural contexts’. In a similar manner, the Islamic Declaration on Cultural Diversity set forth that the ‘aim is also to consider cultural diversity and the right to difference an essential component of human rights, as prescribed by Islam and enunciated in international laws’ (Art. 6; see also Islamic Approach to International Law). The ‘significance of national and regional particularities and various historical, cultural and religious backgrounds’ was also stressed by the Tehran Declaration and Programme of Action on Human Rights and Cultural Diversity, adopted at the Non-Aligned Movement (NAM) Ministerial Meeting on Human Rights and Cultural Diversity (Tehran Declaration and Programme of Action on Human Rights and Cultural Diversity, adopted at the Non-Aligned Movement Ministerial Meeting on Human Rights and Cultural Diversity [held in Tehran, 3-4 September 2007]).

11 Also in State practice, cultural, religious, and value differences have been repeatedly invoked in order to restrict the application of human rights and to justify human rights violations—particularly against women (Women, Rights of, International Protection). Therefore, a UN background note warned that if the protection of human rights is perceived as culturally relative, it would ‘only be subject to State discretion’ (Ayton-Shenker), thus undermining the effectiveness of the human rights system. As was rightly stated by experts, it is a ‘myth’ that ‘[c]ultural diversity requires a trade-off with progressive values of human rights, democracy and equality because it requires defending traditional practices’ (Fukuda-Parr 39).

12 It was accepted by all UN Member States that the international community must treat human rights globally ‘on the same footing, and with the same emphasis’ (UN World Conference on Human Rights ‘Vienna Declaration and Programme of Action’ [25 June 1993] para. 5; Vienna World Conference on Human Rights [1993]) and that it is the ‘duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms’ (ibid). According to the 1993 Vienna Declaration, the challenge is to promote and protect all human rights while bearing in mind the significance of national and regional specificities and various historical, cultural, and religious backgrounds.

13 Thus, cultural diversity is fundamental to human rights. As the 2001 Universal Declaration on Cultural Diversity emphasizes, ‘[n]o one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope’. Those who consider cultural diversity as synonymous with cultural relativism erroneously assume that cultural diversity and human rights are mutually exclusive. Instead cultural diversity is the basis for strengthening the consensus of the universal foundations of human rights. This aspect is emphasized by the Fribourg Declaration on Cultural Rights, a document presented in 2007 by the Observatory of Diversity and Cultural Rights at Fribourg University and written together with UNESCO and leading experts in the field, with the support of several NGOs. The Declaration has rightly emphasized that it is necessary to take into account ‘the cultural dimensions of all human rights in order to enhance universality through diversity and to encourage the appropriation of these rights by all persons, alone or in community with others’ (Art. 9 (d) Fribourg Declaration).

14 The EU demonstrated the importance of cultural diversity for human rights in its Joint Communication to the European Parliament and the Council ‘Towards an EU Strategy for International Cultural Relations’ by the High Representative of the Union for Foreign Affairs and Security Policy (European Commission Joint Communication to the European Parliament and the Council ‘Towards an EU Strategy for International Cultural Relations’ by the High Representative of the Union for Foreign Affairs and Security Policy [8 June 2016] JOIN(2016) 29 final). It set forth that ‘[c]ultural diversity is an integral part of the values of the European Union’ (ibid 1) and that cultural diversity ‘can be protected and promoted only if human rights and fundamental freedoms are guaranteed’ (ibid 3). In this context the EU developed several thematic programmes with dedicated financing instruments, among them the European Instrument for Democracy and Human Rights (‘EIDHR’) (Regulation [EU] No 235/2014 of the European Parliament and of the Council of 11 March 2014 Establishing a Financing Instrument for Democracy and Human Rights Worldwide) and ‘The Global Public Goods and Challenges Programme’ under the Development Cooperation Instrument (‘DCI’). The latter aims under its human development pillar to promote cultural diversity and respect for the equal dignity of all cultures (Regulation [EU] No 233/2014 of the European Parliament and of the Council of 11 March 2014 Establishing a Financing Instrument for Development Cooperation for the Period 2014–2020).

4. The Collective Dimension of Cultural Diversity

15 Cultural diversity stands a chance to become ‘part of the framework which is necessary to guarantee the identity of groups of a distinct character in relation to other groups or in other societies’ (Kugelmann 260). In contrast to the League of Nations which had a proper minority rights protection system (Minority Protection System between World War I and World War II), the UN, in an attempt to avoid tensions between different groups of people, followed an approach primarily based on individual human rights (Minorities, International Protection). Until the end of the Cold War (1947–91) it was the individual and not the group who was entitled to minority protection, even though the rights granted were to be enjoyed ‘in community with other members of their group’ (see Art. 27 International Covenant on Civil and Political Rights [1966] (‘ICCPR’)). The situation gradually evolved with transformation in Eastern European countries at the beginning of the 1990s, giving—on a regional level—rise to new legal guarantees for minorities (for example, the European Charter for Regional or Minority Languages). At the same time, countries with large populations of minorities and indigenous peoples, eg Canada, Australia, and South Africa, were focusing early on collective facets of cultural diversity. In this context, it was finally agreed that the defence of cultural diversity implies ‘commitment to human rights and fundamental freedoms, in particular the rights of persons belonging to minorities and those of indigenous peoples’ (Art. 4 Universal Declaration 2001).

16 Still, objections to recognize and effectively protect group rights under international law are strong. Two different trends can be observed regarding standard-setting for minority protection (see Nolte 22–23). On the one hand we face the rather traditional view referring to Art. 27 ICCPR and emphasizing the general value of the individual rights approach, allowing at the same time an evolutionary interpretation under specific circumstances (see eg UN HRC General Comment No 23; see also the UN Commission on Human Rights’ Commentary of the Working Group on Minorities to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (‘DRM Commentary’ [2005]). While so far cultural rights in international law largely remain defined by Art. 27 ICCPR, the Human Rights Committee (‘UN HRC’) has argued that the right to enjoy one’s own culture can only meaningfully be carried out when exercised ‘in community with others’ or ‘in community with the other members of the group’ (‘Communication No 197/1985, Kitok v Sweden’ [27 July 1988] GAOR 43rd Session Supp 40, 221 para. 9.3; UN HRC ‘Communication No 167/1984, Ominayak, Chief of the Lubicon Lake Band v Canada’ [26 March 1990] GAOR 45th Session Supp 40 vol 2, 1 para. 32.2; UN HRC ‘Communication No 1023/2001, Länsman III v Finland [15 April 2005] GAOR 60th Session Supp 40 vol 2, 90 para. 10.2; UN HRC ‘Communication No 1457/2006, Poma Poma v Peru’ [24 April 2009] GAOR 64th Session Supp 40 vol 2, 216 para. 7.7; UN HRC ‘Communication No 1334/2004, Mavlonov and Sa’di v Uzbekistan’ [29 April 2009] GAOR 64th Session Supp 40 vol 2, 97 para. 8.6; UN HRC ‘Communication No 2102/2011, Paadar et al v Finland’ [5 June 2014] GAOR 69th Session Supp 40 vol 2, 455 para. 7.6). In this line of reasoning, group rights shall only exceptionally be allowed, for example in cases relating to the right of indigenous peoples to possess land (see DRM Commentary para. 18).

17 On the other hand, we observe a more dynamic, sometimes radical development in that the Human Rights Council (United Nations Commission on Human Rights/United Nations Human Rights Council) Declaration on the Rights of Indigenous Peoples (UN HR Council Res 1/2 [29 June 2006] GAOR 61st Session Supp 53, 19), adopted by a recorded vote of 30 to 2 (Canada and the Russian Federation) with 12 abstentions, sets forth that ‘[i]ndigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms’ (Art. 1). Moreover, indigenous peoples shall ‘have the right to the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information’ (Art. 15 (1)). To some extent this may be seen as an ‘empowerment’ of collective entities in international law.

18 Regarding the inherent collective dimension of cultural diversity some distinct regional implications, mainly in the context of nation-building, may be noted. For example, the 1976 Cultural Charter for Africa of the Organization of African Unity (African Union [AU]) emphasizes African cultural diversity as a decisive factor of national integration and identity. African States ‘recognise that African cultural diversity is the expression of the same identity’ (at Art. 4), respectively a ‘factor of unity’ (ibid), as well as a ‘factor making for balance within the nation’ (at Art. 3).

19 Interesting new aspects of ‘cultural diversity’ are also emerging in the Asian regional context. The Plan of Action for Protecting and Respecting Cultural Diversity in Asia, adopted in 2007 by the Asian Parliamentary Assembly (‘APA’), stresses the will to ‘utilize information technology to protect and promote cultural, national and ethnic identities of Asian nations in order to address the challenges of globalization’ (at 2–3). As new technologies expand the scope of choices, cultural diversity is a factor that has to be taken into consideration in this respect: ‘It enables minority communities to make themselves known to the public at large’ (UNESCO World Report, Investing in Cultural Diversity and Intercultural Dialogue [2009] 33). In the years to follow, the APA has shown increasing interest in the field and has passed several resolutions that highlight ‘the importance of strengthening coordination between APA and international and regional organizations’ when it comes to technical support and that call for enhanced dialogue and participation of APA Member State Parliaments (APA/Res/2008/17, APA/Res/2009/05, APA/Res/2010/05, APA/Res/2013/05, APA/Res/2016/01). While nonetheless ‘respecting internal affairs’ (Art. 11 APA/Res/2009/05), the resolutions aim at more active engagement of Member States. By calling for enhanced dialogue and participation, the APA has certainly become an important promoter of cultural diversity in Asia (see also the Reports of the Sub-Committee on Protecting and Respecting Cultural Diversity, SC/Rep/2010/06, SC/2009/05, SC/2008/05).

20 One of the open questions is to what degree the inherent collective dimension of cultural diversity might have an impact on the traditional individualistic human rights approach. The growing importance of cultural diversity in international law, which plays a role in debates on migration and pluralism as well (see eg von Bogdandy; Danchin [2008]), encourages different views, in particular regarding the protection of group rights. In certain cases, for example, the concept of cultural diversity may be in conflict with efforts of States to integrate immigrants, for instance by demanding their assimilation (see also Assimilation, Forced; Immigration; Xanthaki; Council of Europe ‘Migrants and their Descendants––Guide to Policies for the Well-being of All in Pluralistic Societies’ [2010]; ‘Living together—Combining Diversity and Freedom in 21st-century Europe: Report of the Group of Eminent Persons of the Council of Europe’ [2011]).

21 A pluralist concept of cultural diversity does not allow for a denial of difference. There are good arguments for making proper use of existing international human rights instruments in order to respect these differences and make States comply with group rights and interests while thereby protecting minorities from tyranny (Benvenisti 847–50; Nolte 32). In a long-term perspective, a major challenge is to ensure that minorities and their members are not only adequately protected under international law, but also that they are at liberty to pursue their own cultural expressions and religious freedom (Danchin [2009]). ‘Managing diversity’ may make it possible for new opportunities for groups and a new balancing of values and interests to be promoted (Thürer 659).

B. The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (‘CCD’) (2005)

1. Travaux Préparatoires and Adoption

22 The CCD is linked to an early political debate dating back to the 1920s when European countries began to use screen quotas in order to protect their film industry against US films (Bernier [2008] 1). However, it became obvious that a ‘cultural exception’ protecting cultural goods on the world market—which EU Member States had hoped to establish during the Uruguay Round (1986–94)—was rather an illusion. The compromise reached at the end of the Uruguay Round to ‘carve out’ audiovisual services as far as market access, national treatment and the most-favoured-nation clause are concerned, was increasingly challenged in State practice. In Canada—Certain Measures concerning Periodicals ([30 June 1997] WT/DS31/AB/R), the WTO Appellate Body showed marked disregard of cultural content as a distinguishing factor justifying different treatment of foreign and domestic cultural goods and services, ruling that measures taken by the Canadian government (postal subsidy and tax) to support Canadian periodicals violated international trade rules (World Trade Organization, Dispute Settlement). Cultural ‘homogenization’, promoted by huge transnational media corporations, was increasingly seen as a major risk.

23 In the context of preparatory work the COE adopted the Declaration of the Committee of Ministers on Cultural Diversity, expressing the hope that ‘technological and other developments … will not compromise the ability of future generations to meet their needs with respect to the production, provision and exchange of culturally diverse services, products and practices’ (Art. 1 (3) Declaration of the Committee of Ministers on Cultural Diversity). On a global level, the Universal Declaration of UNESCO emphasized the need to pay particular attention to the rights of authors and artists and to the specificity of cultural goods and services ‘which, as vectors of identity, values and meaning, must not be treated as mere commodities or consumer goods’ (Art. 8 Universal Declaration; Intellectual Property, International Protection).

24 On the basis of the Preliminary Study on the Technical and Legal Aspects Relating to the Desirability of a Standard-setting Instrument on Cultural Diversity, the UNESCO Director-General nominated 15 independent experts in order to establish the Preliminary Draft of a Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions. After consultations with the WTO, the World Intellectual Property Organization (WIPO), and the United Nations Conference on Trade and Development (UNCTAD), three intergovernmental conferences were held in Paris: September 2004, January–February 2005, and May–June 2005 (see von Schorlemer [2005] 217–20).

25 After initially holding the status of an observer, in November 2004 the European Commission had obtained a mandate from the Council of Ministers under Art. 300 (1) of the Treaty Establishing the European Community ([signed 16 April 2003, entered into force 1 May 2004] (2006) OJ 321E/37) to take part in the intergovernmental negotiations on the CCD in Paris. The uniform representation of the European Union’s and the Member States’ interests was considered a diplomatic advantage in the negotiating process as the European Community (‘EC’) and its Member States ‘appeared as a single unit voicing its opinion through the Council Presidency and the Commission’ (Eikermann and Jürging 643; see also Vlassis).

26 On 20 October 2005, the CCD was adopted by a majority vote of 148 to two (US and Israel), with four abstentions. It entered into force on 18 March 2007. The CCD is the first UNESCO convention open to accession by regional economic integration organizations (cf Art. 27 para. 3 lit a). On 18 May 2006, the UNESCO Convention was approved by the Council on behalf of the Community by means of Decision 2006/515/EC. Thus, in 2006 the EU became a full-fledged member to this treaty according to Art. 27 (3) CCD (see Council Decision 2006/515/EC of 18 May 2008 on the Conclusion of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2006) OJ L201/15). As of 14 April 2017, 144 States and the EC have deposited their respective instruments of ratification, acceptance, approval, or accession.

2. Political Reactions

27 The new binding document was heralded as a legal instrument filling a cultural ‘gap’ in public international law and creating a new paradigm—a ‘Magna Carta for International Cultural Policy’ (compare eg Deutsche UNESCO-Kommission (ed) Übereinkommen über Schutz und Förderung der Vielfalt kultureller Ausdrucksformen: Magna Charta der Internationalen Kulturpolitik [Deutsche UNESCO-Kommission Bonn 2006])—a ‘tool for international solidarity’ or the ‘Kyoto Protocol of Culture’ (Quintin 41).

28 There was criticism as well. Refusing to become a party to the CCD, the US has harshly criticized its framework as an instrument of protectionism, violating freedom of expression and information (US Department of State ‘Explanation of Vote of the United States on the Convention on the Protection and Promotion of the Diversity of Cultural Expressions’ Statement by US Ambassador to UNESCO L Oliver [20 October 2005]; Information and Communication, Freedom of, International Protection; Opinion and Expression, Freedom of, International Protection). However, the guiding principle of the CCD leaves no doubt that ‘no one may invoke the provisions of this Convention in order to infringe human rights and fundamental freedoms’ (Art. 2 (1) CCD). The importance of cultural diversity for the full realization of human rights and fundamental freedoms is highlighted (see also preamble CCD), diversity being an ‘indispensable resource for civil liberty’ (Hirche 11; see also UNDP Human Development Report 2004, 16).

3. Main Provisions

29 Acknowledging the need to take measures to protect the diversity of cultural expressions, the major achievement of the CCD is the recognition that in international law, cultural activities, goods, and services are fundamentally different from other goods and services. Cultural activities, goods and services have ‘both an economic and cultural’, ie dual character (preamble para. 18). A major objective of the Convention is ‘to give recognition to the distinctive nature of cultural activities, goods and services as vehicles of identity, value and meaning’ (Art. 1 (g) CCD).

30 States Parties reaffirm their ‘sovereign right to formulate and implement their cultural policies and to adopt measures to protect and promote the diversity of cultural expressions’ (Art. 5 (1) CCD; Sovereignty). During the intergovernmental conferences leading to the conclusion of the CCD, it was not feasible to reach a stronger commitment of States. As ‘cultural policy’ is a term not defined in the text, it is up to the Parties to freely decide which cultural policy measures they want to adopt (see examples in Art. 6 (2) CCD).

31 Situations of urgent safeguarding, indicating a ‘risk of extinction’ (Art. 8 (1) CCD) or a ‘serious threat’ (ibid) ought to be reported to the newly established Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions (‘IGC’) and sanctioned by States Parties, while using ‘all appropriate measures’ to protect and preserve cultural expressions (Art. 8 (2) and (3) CCD).

32 Other key provisions concern international co-operation in order to create conditions for cultural expressions to flourish. They are mainly framed as obligations of endeavour or intent. Among others, States Parties agree to integrate culture in their development policies (Art. 13 CCD), to co-operate in advancing development by enabling the emergence of viable local and regional markets, capacity-building, technology transfer, and financial support (Art. 14 CCD), and to encourage ‘collaborative arrangements’ (Art. 15 CCD). Regarding preferential treatment for developing countries, the CCD reflects a dynamic approach, pointing out that developed countries ‘shall facilitate cultural exchanges with developing countries by granting … preferential treatment to artists and other cultural professionals and to practitioners, as well as cultural goods and services from developing countries’ (Art. 16 CCD).

33 On the institutional side, the Intergovernmental Committee, which is elected by the Conference of the Parties (Art. 23 CCD) and assisted by the UNESCO Secretariat (Art. 24 CCD), has the mandate to monitor the implementation of the Convention and to establish procedures and mechanisms for consultation aimed at ‘promoting the objectives and principles of this Convention in other international forums’ (Art. 23 (6) (e) CCD; Art. 21 CCD). The responsibilities of the IGC include preparing operational guidelines for the implementation of the provisions of the Convention, taking decisions on funding requests under the International Fund for Cultural Diversity (‘IFCD’), and inviting public or private organizations or individuals to participate in its meetings for consultation on specific issues.

34 Parties shall report to UNESCO every four years on measures taken to protect and promote the diversity of cultural expressions within their territory and at the international level (Art. 9 (a) CCD). Furthermore, they have to designate a national ‘point of contact’ for information sharing upon ratification (Art. 9 (b), Art. 28 CCD). In Germany, for example, the German Commission for UNESCO serves as the national point of contact, providing a ‘liaison structure for the Secretariat of the Convention’ (Merkel 665).

35 Disputes may be settled on the basis of negotiation, mediation, and conciliation. The dispute settlement procedures in the Convention have been criticized as ‘rather weak’ (Bernier [2012] 602). In contrast to the preliminary draft, the conciliation procedure is not compulsory. And although it may be initiated unilaterally (Art. 1 Annex CCD), each party may use a kind of ‘opt-out clause’ and at the time of ratification declare that it does not recognize the conciliation procedure (Art. 25 (4) CCD).

4. The Convention and WTO Law

36 The conclusion of the Uruguay Round, and in particular the adoption of the General Agreement on Trade in Services (1994) (‘GATS’), had some far-reaching social and cultural effects, both for developed and developing countries, with the latter also being addressed in the name of the defence of ‘cultural diversity’ (see also Trade and Culture). For example, in 1999 Member States of the European Communities referred to ‘cultural diversity’ as a new official policy goal in trade negotiations concerning audiovisual media (Commission of the European Communities ‘Communication from the Commission to the Council and the European Parliament: The EU Approach to the WTO Millennium Round’ [8 July 1999] COM [1999] 331 final). After the EC had fought against the inclusion of audiovisual media in the new WTO law (the so-called ‘cultural exception doctrine’) during the Uruguay Round, and had refrained from undertaking any commitment in the audiovisual services sector of the GATS, it became obvious that as a result of the principle of ‘progressive liberalization’ accepted by all GATS Member States, the question of liberalization of cultural goods and services would resurface on the WTO agenda. Consequently, the promotion of the issue of ‘cultural diversity’ may also be seen as an effort to establish a counterweight to the logic of the free trade of the world market for cultural goods and services (see also Goods, Free Circulation of; Services, Trade in).

37 As far as the relationship between the CCD and international trade law is concerned, UNESCO Member States have demonstrated their will to place the issue of diversity of cultural expressions on an equal footing with WTO law—despite the grave concerns expressed by the US and other WTO Members fearing that an a priori exclusion of such an important trade sector would be created (WTO Council for Trade in Services ‘Communication from Hong Kong China, Japan, Mexico, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and United States: Joint Statement on the Negotiations on Audiovisual Services’ [30 June 2005] TN/S/W/49).

38 Art. 20 CCD, which was adopted after lengthy and complex debates, sets forth that existing obligations must be respected, at the same time leaving no doubt that the CCD will not prevail over trade agreements (for detail see Stoll 519). Parties are obliged to ‘foster mutual supportiveness between this Convention and other treaties to which they are parties’ (Art. 20 (1) (a) CCD). Importantly, ‘Parties shall take into account relevant provisions of this Convention’ (Art. 20 (1) (b) CCD) when they accept other international obligations; ie whenever parties enter into bilateral or multilateral agreements––whether within or outside the WTO framework—they are obliged to respect in good faith the obligations arising from the CCD. The same applies when it comes to the interpretation and application of other treaties (eg GATS) to which they are parties.

39 It is important to note that when States have already undertaken commitments under WTO law (eg GATS schedules), the CCD will not offer an opportunity for them to take additional measures exceeding restrictions already specified in their schedules. Still, it was seen to be highly probable that the innovative nature of the CCD will ‘pave … the way for … a change of interpretation of existing rules’ (Kugelmann 234).

40 It is likely that controversial conflicts relating to the diversity of cultural expressions and trade law will continue to be settled in the WTO (for an earlier case, see United States ‘China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products’ [11 October 2007] WTO Doc WT/DS363/5). Still, it is maintained that the Dispute Settlement Body (‘DSB’) of the WTO is not competent to rule on the issue of compliance with Art. 20 CCD and would therefore not be bound by it either, meaning that the CCD may mainly serve as a justification for the absence or restrictive interpretation of commitments undertaken by Member States of the WTO (Ruiz Fabri 339).

C. The Implementation of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005)

1. Implementation Work of the Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions

41 The IGC, which is composed of representatives of 24 States Parties, is guided by the resolutions of the Conference of Parties (‘COP’), ie the plenary body of the Convention, the establishment of which ‘was deemed crucial’ (Maus 557). In practice it is to be seen that the majority of activities requested by the COP has been implemented by the Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions, in accordance with its work plan (UNESCO Doc DCE/16/10/IGC/10 [10 November 2016] para. 11). Recent activities of the Committee have focused on the implementation of a global capacity-building strategy, the preparation of draft operational guidelines on digital issues, and the development of a results framework for the Convention, based on an indicator system. The Intergovernmental Committee also made an effort to evaluate the preparation and organization of statutory meetings of the governing bodies of the Convention. At its ninth ordinary session from 14 to 16 December 2015, the IGC put on its agenda an Information Document which provided a ‘Satisfaction Survey’ on the Preparation and Organization of Former Ordinary Sessions of the Conference of Parties. In a range of 1 (‘poor’) to 4 (‘excellent’) the average rating across all the statutory meetings was 3.3.

2.  Reporting by Parties

42 In conformity with Art. 9 CCD (‘Information Sharing and Transparency’) and in conjunction with Art. 19 (‘Exchange, Analysis and Dissemination of Information’), parties provide appropriate information every four years on measures taken to protect and promote the diversity of cultural expressions within their territory and at the international level. The Operational Guidelines, which include a thematic framework for reporting, were approved by the third ordinary session of the COP to the Convention in June 2011, and were revised at the fifth ordinary session in June 2015 (‘Revised Guidelines’). Furthermore, the IGC has agreed upon specific guiding principles for the quadrennial reports which were gathered in a detailed ‘Reporting Framework’ (<https://en.unesco.org/creativity/monitoring-reporting/periodic-reports> [last accessed 25 January 2018]; the website also offers more information on the reports, including deadlines and IGC analysis of reports submitted so far).

43 Some early reports in 2012 lacked a solid empirical foundation and provided only rudimentary documentation, and were criticized on this basis (German Commission for UNESCO ‘Diversity. Cooperation. Action. Action Plan 2013 to 2016’ [Bonn 2013] para. IX). Several parties, in particular developing countries, found it difficult to prepare a report in due time, given the lack of data and sometimes also national competences. For example, 45 reports were received in 2012; in 2013, 20 reports; in 2014, 6 reports; and in 2015, 5 reports, for a total of 76 reports, 44 fewer than the 120 reports expected during this period (UNESCO Doc CE/15/9.IGC/10 [15 October 2015] para. 2). Therefore, the Secretariat sent out reminders to parties to submit their reports and finalized, in cooperation with experts, UNESCO Field Offices, and civil society partners a training module on preparation of the reports as part of the launch of a larger capacity-building programme. Furthermore, the Secretariat was invited to make quadrennial periodic reports available on the Convention website for information purposes (UNESCO Doc CE/15/9.IGC/Dec [16 December 2015]).

44 In 2012 the first EU Report on the Implementation of the UNESCO Convention was filed (European Commission ‘Quadrennial Periodic Report on Behalf of the European Union on Measures to Protect and Promote the Diversity of Cultural Expressions on the Framework of the 2005 UNESCO Convention’ [Brussels 23 May 2012] SWD(2012) 129 final). It contained information on internal and external EU policies and measures with a direct or indirect impact on the protection and promotion of the diversity of cultural expressions (eg concerning information society; intellectual property rights; support to cultural and creative industries, entrepreneurship, and innovation; international cooperation; and preferential treatment). Before that, in 2010, the European Parliament had provided an international pilot study with a summary of the state of implementation of the CCD in fields relevant to EU competence and leadership (European Parliament Directorate General for Internal Policies, Policy Department B: Structural and Cohesion Policies—Culture and Education (ed) Implementing the UNESCO Convention of 2005 in the European Union [2010]). As its point of contact, the EU has designated the Directorate General Education and Culture, European Commission.

3. The International Fund for Cultural Diversity (IFCD)

45 An important element of the implementation of the Convention is related to the mobilization of financial resources for developing countries to strengthen institutional, organizational, and individual capacities in the cultural sector. The establishment of an (‘IFCD’) (Art. 18 CCD), although only funded by voluntary contributions, is a means of financial support to States in which the protection and promotion of domestic cultural expressions is ailing. The IFCD is supported by voluntary payments from the Parties to the Convention without any mandatory contributions (Bernecker 468 et seq). According to a 2012 decision of a Development Assistance Committee of the Organization for Economic Cooperation and Development (OECD), these contributions are 100% official development assistance (‘ODA’)–eligible, ie, financial resources for development cooperation can be used for the IFCD.

46 The IFCD, which became operational in 2010, was funding some 84 projects in 49 developing countries––50% of which are in Africa, 38% of which are being implemented in least developed countries. The total funding amounts to US$5.8 million at the end of October 2016 (UNESCO Doc DCE/16/10.IGC/8 [10 November 2016] para. 3; see also UNESCO Doc CE/15/9.IGC/INF.4 [7 December 2015]). Regarding the implementation of all projects financed by the IFCD as approved by the Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions at its fourth, fifth, sixth, seventh, and eighth ordinary sessions, it was reported that practically all projects were completed in due time, ranging from ‘Comprehensive Employment and Training Trades Program’ in Argentina (US$100,000) to ‘Triggering the Creation of Cultural Industry based on Balafons in Côte d’Ivoire’ (US$50,885) or ‘Developing a National Strategy on Copyright’ in Zimbabwe (US$92,928) (for more details see UNESCO Doc CE/15/9.IGC/INF.4 [7 December 2015]).

47 The status of the IFCD projects of the 2010–14 funding cycles demonstrates that 31 projects in 2010 were funded with a total of about US$1.5 million and 17 projects were funded in 2011 with a total of about US$1.2 million, while in 2012 financing was possible for 13 projects with about US$1 million, and in 2013 and 2014 respectively the numbers of projects decreased to ten and seven, respectively, with smaller amounts of financing (UNESCO Doc CE/15/9.IGC/INF.4 [7 December 2015]). The recent stagnation in contributions to the Fund and the lack of human resources to manage the Fund create the risk that it will not meet the comparably high expectations and number of funding requests in the future (see eg UNESCO Doc DCE/16/10.IGC/8 [10 November 2016] para. 4).

4. Participation of Civil Society in the Process of Implementation

48 Cultural diversity can be understood as a dynamic process, placed at the centre of policies for the furtherance of international cooperation. Active participation by civil society, also as a direct stakeholder of the CCD in the implementation and monitoring process (see Arts 11, 9, and 23 (7) CCD), is crucial. For example, the elaboration of Operational Guidelines on the Participation of Civil Society took place from June 2007 to June 2009 with numerous NGOs that presented a road map for the drafting (Merkel 338 et seq).

49 At its ninth ordinary session, from 14 to 16 December 2015, the Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions undertook an ‘Assessment of the Participation of Civil Society in the Implementation of the Convention’ (UNESCO Doc CE/15/9/IGC/9 [16 October 2015]). This document, which was intended to form the basis for a future road map of activities to further enhance cooperation between the CCD’s governing bodies and civil society organizations, contained valuable information (see Annex to UNESCO Doc CE/15/9/IGC/9 [16 October 2015] 9 et seq; see also Anheier; Kononykhina 89 et seq). Among others, the IGC’s assessment found that ‘civil society organizations function not only as innovators in the field of cultural policies and activities but also as change-agents in the process of implementing the Convention’ (UNESCO Doc CE/15/9.IGC/9 para. 9). Furthermore, the value of public–private partnerships was stressed.

50 Coalitions for Cultural Diversity, alliances of artists, and cultural producers as well as professional organizations give force and fresh impetus to the implementation of the CCD. For example, the German Federal Coalition for Cultural Diversity published a White Paper Version 1.0, ‘Shaping Cultural Diversity’ (2010), with numerous recommendations for action that were compiled by more than 60 experts. Three years later, on the occasion of the World Day of Cultural Diversity 2013, the same Coalition published ‘Diversity. Cooperation. Action. Action Plan 2013 to 2016’ (see also ‘Mapping Cultural Diversity’, developed by the U 40 Network [German Commission for UNESCO/Asia–Europe Foundation 2010]). In order to improve partnering with civil society and better implement the CCD, the German National Commission for UNESCO launched the CONNEXXIONS initiative in the Arab region, providing training workshops in Egypt, Morocco, and Tunisia that bring together various civil society actors and representatives of government agencies.

51 There are ‘innovative examples’, showing that a growing number of States include civil society organizations in their policy-making processes (for example Burkina Faso’s National Forums of Artists and Intellectuals for Culture, Denmark’s International Cultural Panel, or Paraguay’s National Council of Culture; see also <https://en.unesco.org/creativity/monitoring-reporting/periodic-reports/innovative-examples> [last accessed 25 January 2018]). However, full engagement of civil society is often hindered by the lack of legal, institutional, and financial infrastructure to support civil society organizations, weak information sharing between civil society, the private sector, and governmental agencies, or top-down approaches by public agencies and little knowledge of the opportunities the Convention offers (UNESCO Doc CE/15/9.IGC/9 para. 10). As less than half of the quadrennial State reports explicitly mention the involvement of civil society in preparing the report (UNESCO Doc CE/15/9.IGC/9 para. 7) policy-making cooperation on the national level seems rather weak. For that reason, the Secretariat prepared a training module for quadrennial periodic reports that strongly emphasizes the full participation of civil society. Also, so-called exchange sessions are regularly organized by the UNESCO Secretariat in order to facilitate informal discussions between civil society and Parties to the Convention.

5. The Deepening of North-South and South-South Cooperation

52 As part of the cooperation for development (Arts 12, 14 CCD) parties endeavour to support the emergence of a dynamic cultural sector in developing countries. It is interesting to note that within the framework of South-South cooperation, the levels of trade among developing countries have increased since the CCD was adopted. For example, there was a clear increase in trade of cultural goods between the members of the Pan-Arab Free Trade Area (‘PAFTA’) from roughly 15% in 2004 to 58.2% in 2013 (Deloumeaux 128).

53 Still, the goal of a balanced flow of cultural goods and services has not yet been achieved. The total value of exports worldwide of cultural services was US$128.5 billion in 2012, with developing countries sharing only 1.6%. The fact that developed countries dominate with a world share of 98% is seen to be related to the increase in the flows of electronically transmitted audiovisual and artistic-related services (Deloumeaux 121). Digitization, often resulting in ‘dematerialization’, has a considerable impact on the production of music, films, and books and other tangible cultural goods: In 2014, sales of these items decreased by 8.1% compared to 2013 (UNESCO Institute for Statistics The Globalisation of Cultural Trade: A Shift in Consumption. International Flows of Cultural Goods and Services 2004–2013 [UNESCO Institute for Statistics Montreal 2016] 12).

54 According to Art. 16 CCD, developed countries shall facilitate cultural exchanges with developing countries by granting preferential treatment to artists and other cultural professionals and practitioners, as well as cultural goods and services from developing countries. The EU CARIFORUM Protocol on Cultural Cooperation was the first legal instrument implementing the Convention by the EU in its external relations. It has been related to Article 16 CCD on preferential treatment and consists of an innovative framework for improving access to cultural goods, services, and professionals coming from CARIFORUM countries (Troussard Panis-Cendrowicz and Guerrier 441 et seq, 445). Other examples of the conclusion of a stand-alone Protocol on Cultural Cooperation concern the EU trade agreement with Colombia and Peru and the EU–Central America Association Agreement.

55 Still, on a world-wide scale, provisions relating to specific preferential treatment measures for cultural goods and services in free trade agreements remain rare. Part of the problem seems related to the fact that preferential provisions pertaining specifically to cultural goods and services are not built in to the (free trade) arrangements, eg ANDEAN; ASEAN; COMESA; MERCOSUR; SAFTA; WAEMU (Deloumeaux 128). Therefore, the introduction of a cultural cooperation protocol within economic and trade agreements is recommended (ibid 133).

56 Even if such a cultural cooperation protocol does exist as an integral part of a free trade agreement, the results of such a protocol may be weak. For example, in the case of the EU and South Korea, the 2009 Protocol on Cultural Cooperation (<http://trade.ec.europa.eu/doclib/docs/2009/october/tradoc_145194.pdf> [24 April 2017]), which set clear co-production criteria, is contained in the Appendix to the Free Trade Agreement. Although Korea and the EU made considerable efforts to promote audiovisual co-production, there has been no single case of co-production work according to the Articles on audio-visual co-production and financial benefits in private sectors under the protocol. As the 4th Korea–EU Committee on Cultural Cooperation stated in Seoul on 6 March 2017, new ways to facilitate the conditions of the Protocol to promote co-production may therefore be discussed.

57 Creativity being a source of innovation, action should be taken to facilitate not only the exchange of artistic production by investing in its development, but also the circulation of artists (see for example <www.touring-artists.info> [30 April 2017]). Article 16 CCD, which stipulates preferential treatment for artists, cultural professionals, and practitioners, is a ‘mandatory article for industrialized nations’, as was rightly emphasized in the Action Plan of the German Commission for UNESCO (‘Diversity. Cooperation. Action. Action Plan 2013 to 2016’ [German Commission for UNESCO Bonn 2013], p. 8, para. IV; see also Art. 14 (a) (v) CCD). In April 2013, the NGO ‘On the Move’ addressed recommendations on ‘Artists’ Mobility and Schengen Visas’ to the ‘European Commission, EU Member States and EU-based cultural organisations’ (http://on-the-move.org/files/OTM_VISArecommendations.pdf [25 January 2018]; see also http://on-the-move.org/files/Green-Mobility-Guide.pdf [25 January 2018]). However, different procedures for issuing visas and a range of denials regarding visa requests cause practical obstacles to the mobility of artists, even more so in the midst of the recent refugee crises.

D. Perspectives

1. Cultural Diversity and Sustainable Development

58 In 2010, the UN General Assembly acknowledged the importance of culture for sustainable development in its Resolution on ‘Culture and Development’ (UN Doc A/RES/65/166, GAOR 65th Session Supp 49 vol 1, 346). Concerning action on cultural diversity and sustainable development, the 2009 UNESCO World Report made a recommendation to ‘[i]dentify concrete measures to operationalize research on the cultural dimension of natural resources conservation and management, with particular reference to the knowledge and knowhow of indigenous communities’. Furthermore, it encouraged the ‘participation of members of all communities in defining allocation criteria on the basis of social justice’ (UNESCO World Report ‘Investing in Cultural Diversity and Intercultural Dialogue’ 35).

59 Bringing together the cultural and economic dimensions of development in implementing the sustainable development provisions of the Convention remains a major task. One of the ‘key goals’ of the UNESCO Convention is ‘to influence the balance of power between culture and trade for the benefit of sustainable cultural (self-)development’ (‘Diversity. Cooperation. Action. Action Plan 2013 to 2016’ [German Commission for UNESCO Bonn 2013], p. 1). Still, there is ‘considerable scope’ for the Convention (see Art. 2 (6); Art. 13 CCD) to provide a ‘framework and a forum for keeping the role of culture in sustainable development at the forefront of international policy-making in the years ahead’, in particular by integrating culture in the ODA strategies (Throsby 154).

60 An overview of results of the projects supported through the International Fund for Cultural Diversity and implemented in 2013–15 is to be found in the Report ‘Walking the Paths of Sustainable Development’ (UNESCO Doc CE/15/9.IGC/INF.5, 7 December 2015), which was edited by the Secretary of the Convention. It demonstrated that the projects funded by the IFCD deliver on 11 of the 17 Sustainable Development Goals (‘SDGs’), including Goal 1, ‘no poverty’ (US$5.3 million support projects in 48 developing countries); Goal 4, ‘quality education’ (40% of IFCD funds nurture young talents and develop professional capacity), and Goal 5, ‘gender equality’ (with US$1 million that has been invested by IFCD to promote gender equality). Goal 8, ‘Decent world and economic growth’, was supported by the IFCD with US$3 million that was invested in empowering young cultural entrepreneurs. Moreover, the IFCD reduced inequality (Goal 10) as it brought digital technology to ten indigenous communities and supported digital creativity as an important element of Goal 12 (‘Responsible consumption and production’). Furthermore, the IFCD raised US$2.6 million from partnerships, many of its projects resulting at the same time in new creative networks, thus simultaneously promoting Goal 17 (‘Partnerships for the Goals’).

61 Thus, the IFCD is increasingly recognized as an effective instrument of international cooperation aiming at sustainable development on a worldwide scale. Given the main areas of IFCD’s investments in sustainability measures, it follows that States should allocate increased financial resources to it as a matter of priority in order to achieve the SDGs by the intended date of 2030.

2.  Cultural Diversity, Democratic Governance, and Conflict Prevention

62 Generally, the recognition of cultural diversity is able to enhance social cohesion and encourage innovative modes of democratic governance based on the participation of all communities. In order to promote intercultural solidarity, exchanges between minority groups and/or between them and majority communities will serve this purpose. Ideally, intercultural and interfaith dialogue will be a means of ensuring improved governance and avoiding conflict (see Bouchard and Taylor; see also Adelman and Anctil).

63 Regrettably, however, there is a risk of potential instrumentalization of cultural diversity and pluralism, threatened often by widespread human rights violations. Armed conflicts fuelled by non-State terrorist actors tend to destabilize whole regions, leading to an influx of displaced persons and refugees in thus far unknown dimensions. This is to be seen, for example, in Afghanistan, Iraq, Syria, Mali, Nigeria, and Libya, and in other conflict-ridden regions. In conflict situations, artists will likely face situations in which creating, producing, and disseminating cultural expression will be difficult, and these difficulties will threaten their freedom of movement and artistic freedom (UNESCO Doc DCE/16/10.IGC/10 [10 November 2016] para. 12). Moreover, ethnic and cultural cleansing in conflict areas enhances the risks to cultural heritage and increases the danger of annihilation of cultural diversity. Against the background of cultural diversity/cultural identity, new challenges for the international community arise. The UNESCO Strategy ‘Reinforcement of UNESCO’s action for the protection of culture and the promotion of cultural pluralism in the event of armed conflict (2015–2021)’ <http://en.unesco.org/system/files/235186e1.pdf> (30 April 2017) addresses these issues (see UNESCO Doc DCE/16/10.IGC/INF.10; Schorlemer [2016] 755 et seq).

3. Concluding Remarks

64 Even if the CCD has never been expected to cover all aspects relating to the flourishing of cultural diversity, its regulatory framework serves to highlight the values of cultural diversity in international relations and to encourage openness and creativity. It is therefore important that States Parties, in particular developing countries, make active use of the treaty’s potential by developing instruments to promote the diversity of cultural expressions in the local, national, and regional context. Support not only for the process of ratification but also for capacity-building in the countries from the South is of fundamental importance.

65 To conclude, it is to be hoped that the promotion of cultural diversity will reduce the globalization-driven threat of cultural homogenization and enhance tolerance and peace in international relations—provided that it flourishes within a stable legal framework.

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