Substantive WTO Law and the Convention on the Diversity of Cultural Expressions
in Toshiyuki Kono and Steven Van Uytsel (eds), The UNESCO Convention on the Diversity of Cultural Expressions: A Tale of Fragmentation in International Law (Intersentia, 2012) 273-289.
9 Pages Posted: 28 Sep 2015
Date Written: 2012
In the following sections, I examine some of the main ways in which culture and trade intersect in the WTO agreements, noting differences with the Convention on the Diversity of Cultural Expressions where relevant. I first address the key WTO disciplines affecting trade in goods and services that could conflict with certain cultural measures that a WTO Member might wish to impose (whether pursuant to Convention on the Diversity of Cultural Expressions provisions or otherwise), before turning to WTO 'exceptions' that may provide sufficient flexibility to allow such measures even where they would ordinarily violate the general disciplines. In this context, I am primarily examining the General Agreement on Tariffs and Trade 1994 ("GATT 1994") and the General Agreement on Trade in Services ("GATS"), although I also mention the Agreement on Subsidies and Countervailing Measures ("SCM Agreement"), the Agreement on Agriculture, and the Agreement on Safeguards. Other WTO agreements (not covered in this chapter) may also affect the relationship between trade and culture, including the Agreement on Trade-Related Aspects of Intellectual Property ("TRIPS Agreement") and the Agreement on the Application of Sanitary and Phytosanitary Measures ("SPS Agreement").
This review demonstrates the many areas in which the Convention on the Diversity of Cultural Expressions and the WTO agreements overlap, in either conflicting or harmonious ways. The often complicated connections between the substantive rules of the two agreements would need to be untangled to determine whether a particular "cultural policy measure" proposed under the Convention on the Diversity of Cultural Expressions was consistent with the WTO agreements. Although it may be impossible to determine the outcome of such an exercise in advance, the wording under both treaties may be broad enough to prevent conflicts in most cases.
Keywords: Convention on the Diversity of Cultural Expressions, World Trade Organization, GATT 1994, GATS
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