R OSTAM J N EUWIRTH

I – Introduction: The Light at the End of the World

En verité nous sommes certainement à un instant où un nouveau paradigme va devoir se substituer aux anciens (Vivant 2000: 17). Culture, law, economics, politics, technology, science, and religion are all general concepts that are used to explain particular aspects of a mysterious process called “human evolution” – the final destiny of which still evades our intellectual grasp and, therefore, continues to be the sub- ject of scientific speculation and spiritual divination. The continuing uncertainty surrounding human evolution and its destiny invites questions about the adequacy of both our senses and our cognitive modes of perception. Put differently, when a number of questions yield divergent responses, it may be time to rethink and reframe the ques- tions themselves. From time immemorial, human efforts have been devoted to unravelling the mysteries enclosing human life, which became known by different names, like the “holy grail” or the “philosopher’s stone”. Many but not

all of these efforts have become translated into innovative tools, devices, or machines that were designed in acts of ingenious creativity that today are simply referred to as “technologies”. Today, technologies are often falsely sepa- rated from the arts, with which they share “creativity” as their central source of inspiration (Heidegger 1979: 318). Certainly many different technologies exist and serve even more numerous purposes. But in the quest for the des- tiny of humanity, those technologies that were meant to enhance and that did actually enhance our perception and understanding stand out. Compressed in time, some of the principal inventions for sight or visual perception include optics, the camera obscura, still photography, cinematogra- phy, and the computer and its digital technologies, to men- tion but a few.

Each one of these inventive steps has, no doubt, enlarged our vision. But, in sum, have they also helped to cast more light on the original mystery of life and the direc- tion of its evolution? Arguably, in recent years tremendous progress in all fields of science has been made, which is especially visible in an ever accelerating pace of innovation and in the development of novel technologies at an expo- nential speed. Progress is, in fact, considered to be so great that the modern age is now referred to as a new epoch, the Anthropocene epoch, i.e. a time when human activities have a significant global impact on the earth’s ecosystem (Crutzen 2006: 13). Alternatively, it has been captured by the term “singularity”, that is to say a world where the dif- ferences between machines and humans or real reality and virtual reality will gradually vanish (Kurzweil 2005).

Yet, in this acceleration of perception, of history (Nora 1989: 15), or of “everything” (Gleick 2000: 6), despite all the efforts and progress made every “nanosecond”, it appears that – paradoxically – we are no nanometer nearer than were our ancestors to the goal of understanding the process leading towards our final destiny. Or, to put it differently, “the empire of man over himself” has not kept pace with

“the empire of man over nature” (Luzzatti 2005: 376). In this sense, humanity today perhaps even seems to be going backwards in comparison with previous generations. The same regression may also apply to the law and the process of the regulation of these new technologies, as the speed of their regulation seems disproportionate to the speed with which they occur (Picker 2001: 185; Bennett Modes 2011: 768). In other words, the law appears to lag behind techno- logical innovations, thus opening a gap between these tech- nologies and their legal and ethical oversight (Marchant, Allenby and Heckert 2011). One of the reasons for this may be that the objective of the law may be diametrically opposed to the objective of technology, as the former aims to maintain, preserve, and avoid sudden changes in order to guarantee the rule of law in terms of legal predictability and certainty, whereas the latter constantly pushes for change, and for improvement through innovation. Human evolu- tion, however, appears to encapsulate both tendencies. Ulti- mately, the question is what causes the alienation between the progress in science that is manifest in new technologies and the better understanding of human evolution and its eventual destiny.

This question will be pursued by a brief look at the role of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions in the coming decades, notably in the future of the governance of global affairs. This is justified because, legally speaking, the Convention has been found to “only unfold legal effect

pro futuro and will by no means have retroactive effects”

(Neuwirth 2006: 819 and 847). Certainly it will not have direct retroactive effects, but perhaps it will have them indi- rectly, namely, paradoxically, by instigating a fruitful debate that, by changing the future, will in hindsight put a different complexion on the past. To this end, the present chapter first features a prologue introducing an allegory as a hint at the possible correlation between humanity’s striving for scientific discovery and its final destiny. Put differently, the

allegory may contain a clue about the purpose of technolo- gies, by considering not only what they allow us to achieve but also what they tell us about ourselves. Consequently, the chapter briefly revisits the historical origins of the Conven- tion so as to pave the way for a better understanding of its potential shortcomings in the future. To avoid these poten- tial shortcomings, the chapter then looks at clues found in the present scientific and legal debates as well as in daily public discourse, and the key concepts featured in these debates. In the following some existing technologies are briefly listed before some findings and recommendations for the future of the Convention, as well as for UNESCO as a whole, are formulated as concluding remarks. Last but not least, an epilogue unravels the mystery enshrined in the allegory mentioned in the prologue.

II – Prologue: “From the Earth to the Moon” and the Quest for the Divine Light

Verne’s future looks backwards, just as his past looks forwards. It is anticipation in reverse. Verne is both a visionary and a nostalgic, and the particular difficulty of his work is that he happens to be both of these at once (Unwin 2000: 31).

In humanity’s historical quest for “enlightenment”, cer- tain people have, periodically, albeit often only posthu- mously, been considered to be visionaries in the sense that they have anticipated important developments marking the progressive stages of human evolution. The French writer Jules Verne (1828–1905) is definitely one of these peo- ple (Unwin 2000; Evans 2013). With his numerous nov- els, among them, notably, From the Earth to the Moon (first published in 1865) and Twenty Thousand Leagues Under the

Sea (first published in 1870), he is said to have anticipat-

ed technological developments long before they material- ized. Interestingly, these two book titles also correspond to

elements of an ancient allegory about humanity’s quest for “divine light”, which translates into a greater understand- ing and awareness of the direction and destiny of human evolution. This allegory runs as follows:

There was a time in the history of the race when the gods stole from man his divinity, and, meeting in a high conclave, sought to decide where to hide that which they had stolen. One god suggested that they hide it on another planet, for there man could not find it, but another god arose and said that man was innately a great traveller and they had no guar- antee that, eventually, he might not find his way there. “Let us,” he said, “hide it in the depths of the sea, at the bottom of the ocean for there it will be safe.” But again a dissent- ing voice was heard, and it was pointed out that man was a great natural investigator and that he might someday succeed in penetrating to the deepest depths as well as the greatest heights (Bailey 1979: 106-107).

In hindsight, as anticipated by Jules Verne, humans have already travelled to the Moon (although this is not a planet in a strict sense) and to the bottom of the deepest spots in the oceans and would, therefore, most likely have found the divine light there. But the story continues; after the discussion went back and forth, one bright god arose and suggested another hiding place for the “stolen jewel” of human divinity, a place where he was certain humans would never look. After he made his suggestion for a hiding place, the conclave broke up happily as “the gods realized that a truly inaccessible place had been indicated, and for eons it seemed as if the light hidden in man was lost forever” (Bailey 1979: 107).

Thus the question is: what was the place he suggested as being the safest hiding place, where humans would not be able to find human divinity? If one considers another novel by Jules Verne, the answer could well be found in the centre of the Earth (Verne 2011). But in this regard, perhaps even Jules Verne may have used the Earth as a metaphor

for humanity’s quest for divine light or greater awareness. Perhaps a clue as to the meaning of the metaphor can be found in the UNESCO Convention and the mandate given to UNESCO in general.

III – “Culture Against Trade”: A Tale of the UNESCO Convention

The real phenomena of human economy, as paradoxical as it may sound at first, are to no small extent of an uneconomic nature (…) (Menger 2009: 218).

The UNESCO Convention on the Protection and Pro- motion of the Diversity of Cultural Expressions, adopted in 2005, is itself a child of new technologies. In brief, it was born out of the disagreement over the treatment of cultur- al, particularly audio-visual, products during the Uruguay Round of negotiations on the establishment of the World Trade Organization (WTO). More concretely, the global increase in the volume of sales of Hollywood movies in the wake of the international trade liberalization undertaken in the 1947 General Agreement on Tariffs and Trade (GATT) were regarded as threatening the diversity of cultures dis- played in the world. The underlying conflict goes back to a centuries-old struggle consisting of attempts to meet reg- ulatory challenges derived from the apparently disparate objectives related to culture on the one hand and to inter- national trade and commerce on the other. In line with a broader tendency of fragmentation, culture and trade (in the same way as many other areas of human endeavour) were largely perceived to be mutually exclusive, incompat- ible and irreconcilable, which also explains why they were assumed to need to be regulated separately. The tradition of their separate regulation can be seen from the Roman legal

concept of “res extra commercium” to the adoption of Article IV GATT on cinematograph films, and it still persists in Article 20 of the UNESCO Convention itself.

The regulatory separation between culture and trade, however, came under pressure during the late 19th century with the invention of the cinematograph, which created the novel category of motion pictures or movies. This grow- ing pressure resulted from the dual character of movies, both economic and cultural, which drew the two areas clos- er. Their dual character but remaining inherent contradic- tion was also captured in the concept of “culture industry”, which was deliberately coined as an oxymoron, i.e. a fig- ure of speech combining two apparently antagonistic and hence irreconcilable concepts. Ever since, the said pressure has continued to increase exponentially. This has occurred mainly as a result of the advent of digital technologies, which started a broader trend towards the convergence of different industries and products, and which from that time on has continued to challenge the regulation of interna- tional trade and the diversity of cultural expressions alike (Guèvremont et al. 2013; Neuwirth 2015a). Thus, the cin- ematograph, which literally set pictures in motion, both accelerated and expanded our means of perception, but the expansion came at the cost of blurring numerous regulatory distinctions that had been carefully drawn between con- cepts and areas in the centuries before.

During the past few decades, the regulatory challenges caused by the acceleration of perception and the blurring of earlier lines of distinction have been increasingly met by the creation of a category of concepts that is able to cope with both trends. This category is called “essentially oxymoronic concepts” and comprises paradoxes, contra- dictions in terms, and oxymora (Neuwirth 2013c). These concepts mark a shift or move away from a dualistic con- ception of scientific discourses that, hitherto, relied on a tradition of diverging views or even an opposition between hypothesis and antithesis that was captured by the notion

of “essentially contested concepts” (Gallie 1956). It hardly comes as a surprise that a category of concepts that are inherently contradictory will come to clash with a strictly dualistic method or the classical logic of legal reasoning as exemplified by the legal syllogism. This dualistic conception of the law was superbly summarized by the nomos or legal universe that is constantly created by “a world of right and wrong, of lawful and unlawful, of valid and void” (Cover 1982: 4). However, it is argued that the growing pressures exercised by innovation in technologies and industries are only slowly or inadequately met by appropriate changes in the regulatory and legislative environment, both insti- tutionally and substantively. Instead of critically rethinking the foundations for regulation or law and policymaking, the many drastic changes in the regulatory environment are met mainly by a fuite en avant that is manifest in a deluge of norms caused by excessive regulation or a proliferation of norms and regulatory bodies alike (Heldrich 1983; Oppetit 1990: 317). Before it is possible to contemplate the chal- lenges to the existing regulatory approaches that are set by these changes, it is necessary to discuss briefly some of the essentially oxymoronic concepts as they are used today.

IV – The UNESCO Convention and Essentially Oxymoronic Concepts: Logic, the Inflexible?

Paradox is a rich source for artistic creation; it is, however, a poor basis for the development of cultural trade policy (Dymond & Hart 2002: 32).

It was mentioned earlier that the UNESCO Conven- tion itself may perhaps have been born out of the oxymoron of the culture industry. The decision to negotiate it was also triggered by the oxymoron of an “agreement to disagree” between the trade negotiators of the EU and the US (Elliott & Luce 1993: 1). On a broader level, the debate preceding

the Convention’s adoption was based on the paradox of culture and trade, which consists in the conundrum of how to best reconcile the seemingly irreconcilable objectives of cultural policies or the protection of cultural diversity on the one hand and trade policies or international trade liberalization on the other. The paradox also became vis- ible in the first draft of Article 20 of the Convention on the relationship with other instruments, which stipulat- ed that the Convention should not affect the rights and obligations of the Parties derived from other internation- al agreements, and that neither should other international agreements affect the rights and obligations of the Parties under the Convention (Neuwirth 2013a: 406). The culture and trade debate itself gave rise to an abundance of culture and trade paradoxes. (Neuwirth 2015b; Dymond & Hart 2002). Even cultural diversity, when understood as discordia

concors, may be framed as an oxymoron. By comparison,

the notion of cultural variety would be easier to recon- cile in logical terms, by stating that members of a culture share its values or features but still display a great variety. Even related concepts, like that of cultural property, have been referred to as a paradox given the inherent tensions between property being fixed and culture being unfixed, dynamic, and unstable (Mezey 2007: 2005). The UNESCO Convention itself restates that culture is an evolving con- cept, taking “diverse forms across time and space”, which is why the regulation of culture and the cultural industries has been found to constitute a paradox and an oxymoron (Adorno 1991: 123; Pratt 2005: 31-32).

The concept of cultural diversity is also closely related to the fears associated with globalization and its negative outcomes, such as the “Coca-Colonization” of the world’s many distinct cultures (Melnick & Jackson 2002: 429). In response to such fears and to emphasize local differences, it was proposed that the concept of globalization should be replaced by the one of “glocalisation”, another seeming oxymoron (Khondker 2005: 187-188). The role of cultural

diversity in development was equally recognized, partic- ularly in the context of sustainable development, which also displays an inherent contradiction akin to an oxy- moron (Sachs 1999: 38; Njiro 2002; Redclift 2005). Final- ly, new technologies and their convergent trends gave rise to many new product categories, often captured by port- manteaus of previously separate products. These products do not only include cosmeceuticals or nutriceuticals, prod- ucts merged from the cosmetic, pharmaceutical, and food industries (Ulbricht 1993; Dureja et al. 2011), but they also invaded more traditional industries, as can be seen from products like sports utility vehicles (SUVs), ice tea, or Frap- puccino, all of which can be described as oxymora. Final- ly, advertising also embraced these concepts with slogans like “less is more”, “spend more and save more”, or “the world’s local bank”.

The new challenges derived from the management of these new industries were also addressed by oxymora, such as the one of coopetition, which combines elements of cooperation and competition in order to address the con- sequences of industry convergence (Ancarani & Costabile 2010: 216). Paradoxical thinking was even introduced as a way to enhance profits (Fletcher 1997). Law and regula- tion soon followed suit and used the oxymoron “coopeti- tion” to combine public and private actors or governmen- tal and non-governmental regulatory processes, as well as processes between the different international regimes (Esty & Geradin 2000: 235, 237 and 253; Neuwirth & Svetlicinii 2015: 369). Generally, law has often been described by reference to paradoxes or contradictions (Cardozo 1928; Fletcher 1985; Perez & Teubner 2006). In sum, there exist many more examples of essentially oxymoronic concepts, but the present listing should suffice to support claims that contemporary times qualify as the age of paradox (Handy 1995). In turn, this should also suffice as support for calls for a new conceptual and possibly cognitive approach to law and policymaking in the future. As will be outlined

below, this should particularly apply to UNESCO and its mandate. First, it will be interesting to take a look at the future, particularly from the perspective of new technolo- gies and their impact on culture or cultural variety.

V – The UNESCO Convention and New Technologies: In Seconds Around the World

La gente sin sueños se muere antes (Subiela 1995).

In his oxymoronic character as a nostalgic visionary, Jules Verne was able to combine the insights from the past creatively with projections about the future. To put it another way, as a writer he possibly “foretold the future, “inventing” modern technology through the power of his imagination” (Unwin 2000: 18). Imagination and creativity may be exactly the same thing and, as a source of inspira-