The tension between "free trade" and protection of domestic cultural industries is not a new phenomenon. In recent years, the issue of trade and culture which had come up with force at the end of the 1980s. Since the topic was moved from the trade (GATT and WTO) arena into the UNESCO. In fact, the WTO has been one of the main stimuli (if not the only one) for a number of States to pursue the adoption of the UNESCO Convention. In this respect, the term aims at corrections in the process of globalization; it serves as antonym to a culturally uniform global society shaped by the USA (1).
On March 18, 2007, the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expression (CCD or Diversity Convention), entered into force after an incredibly swift ratification process. At press time, 100 Parties (99 States and the European Community as a regional economic integration organization) had ratified the treaty. On January 30, 2007, China submitted its ratification instrument to UNESCO, joining the States Parties to the Convention. The origin of the Convention can be traced to the Universal Declaration on Cultural Diversity adopted in November 2001. It should be pointed out that the Declaration adopted after September 11, 2001 rejects the clash of cultures and civilisations thesis and lays emphasis on dialogue of civilisations and in a cultural diversity identified as essential for human kind.
The crux of the debates over the Convention was whether cultural goods should be treated like any other goods or whether they deserve a separate treatment given the importance of cultural goods which cannot be restricted to economic value alone. According to the Convention, the cultural goods and services have dual nature and constitute on the one hand, commodities that can be traded and are, on the other hand, vehicles of identity, values and meaning. In one sense, the Convention has added impetus to the ongoing debates and measures on use of incentives and policies by national governments to protect and promote local and national audiovisual and information services, including film, television and music. The question then is, are such measures permissible under WTO rules.
The relationship of this Convention to other conventions and treaties is an important issue (2). Part V of the Convention contains two norms dealing with its relationship with other legal instruments: articles 20 and 21. The latter provision, in a rather non binding manner, encourages the Parties to promote the objectives and principles of the UNESCO Convention in other international forums and to consult each other for this purpose. The former, article 20 of the Convention, incorporates the critical "conflict of laws" rules and had been for this reason at the centre of intense discussions throughout the negotiations.
Does the Convention provide ammunition for defenders of national cultural policies to protect and promote national cultural expressions? It not very sure that the interpretative and legislative solutions will help lessen the tension arising from jurisdictional overlap between the Convention and WTO agreements and help prevent the on-going clash between trade interest and cultural diversity. Regarding the relationship between WTO rules and the Convention, there is no consensus between the Members of WTO. Moreover, glancing at the practice of the WTO adjudication until now, it is improbable that the Panel (and/or the Appellate Body) will more take into account cultural diversity when adjudicating. A particularly unpleasant blow to cultural exception backers was the Canada–Periodicals case (1997) in which Canadian cultural arguments were not accepted as valid by both the Dispute Settlement Panel and the Appellate Body of the WTO. After this case, a new "trade versus culture" WTO case emerges: case against China and its measures affecting trading rights and distribution services for audiovisual entertainment products and certain publications (Report of the Panel, WT/DS363/R, 12 August 2009).
On April 10, 2007, the United States requested consultations with China concerning:
- 1/ certain measures that restrict trading rights with respect to imported films for theatrical release, audiovisual home entertainment products (e.g. video cassettes and DVDs), sound recordings and publications (e.g. books, magazines, newspapers and electronic publications); and
- 2/ certain measures that restrict market access for, or discriminate against, foreign suppliers of distribution services for publications and foreign suppliers of audiovisual services (including distribution services) for audiovisual home entertainment products (3).
For USA, China has failed to fulfil its WTO commitments in numerous respects. Regarding trading rights, the United States seeks consultations on various Chinese measures that reserve, to certain Chinese state-designated and wholly or partially state-owned enterprises, the right to import films for theatrical release, audiovisual home entertainment products, sound recordings and publications. The European Communities requested to join in the consultations requested by the United States. The European Communities and Japan reserved their third-party rights. Subsequently, Australia, Korea and Chinese Taipei reserved their third-party rights.
Without wanting to elaborate on this case, I would like to stress some important issues that need to be taken into account when talking about the possibility of balancing economic and cultural objectives inside the WTO framework. Firstly, the line between the GATT and GATS could not always be clearly defined in this case. Secondly, the measures at issue seem to relate mostly to the commercial presence, and to cross-border supply for sound recording distribution services, modes one and three of the service provision under the GATS. They are all subject to the general exceptions under the GATS.
Concerning the cultural diversity, the most relevant "carve-out" defenses that China invoked in this dispute are the general exceptions specified in the GATT 1994 and the GATS: necessary to public morals article XX (a). China considers that reading materials and finished audiovisual products are so-called "cultural goods", i.e., goods with cultural content. China submits that they are products of a unique kind with a potentially serious negative impact on public morals. China explains that, as vectors of identity, values and meaning, cultural goods play an essential role in the evolution and definition of elements such as societal features, values, ways of living together, ethics and behaviours. China notes in this respect the UNESCO Universal Declaration on Cultural Diversity, in its article 8, (cultural goods are "vectors of identity, values and meaning" and that they must not be treated as mere commodities or consumer goods). China points out that because of this impact of cultural goods, it put in place an appropriate content review mechanism so as to prevent the dissemination of cultural goods with a content that could have a negative impact on public morals in China.
The Panel observes in this respect that China has not invoked the Declaration as a defence to its breaches of trading rights commitments under the Accession Protocol. Rather, China has referred to the Declaration as support for the general proposition that the importation of products of the type at issue in this case could, depending on their content, have a negative impact on public morals in China. We have no difficulty accepting this general proposition, but note, as indicated, that we need to focus more specifically on the types of content that is actually prohibited under China's relevant measures.
After addressing those of the relevant measures which China says identify prohibited content and requires that the content of reading materials and finished audiovisual products must be reviewed before they are imported into China, the panel first address the meaning of the concept of "public morals" as it appears in article XX (a). The Panel followed the established relevant jurisprudence (particularly US – Gambling) whereby the term public morals denotes standards of right and wrong conduct maintained by or on behalf of a community or nation (4).
The Panel recalls its conclusion above that China has not established that the measures at issue are "necessary" within the meaning of article XX(a) to protect public morals. Consequently, and in keeping with a large mass of prior jurisprudence, the Panel not examines this issue. In the light of this conclusion, there is no need to go on to examine whether the relevant measures satisfy the requirements of the chapeau of article XX, as China claims. This shows that the Panel is often receptive to non-trade theories underlying trade-restrictive measures. But, Chine and the Panel avoid the debate on diversity cultural as conducive to the substantive purpose of the "public morals" exception.
Australia has the merit not to have to avoid the debate. It agrees that cultural values can contribute to the public morals prevailing in a WTO Member. However, it is incumbent upon China to show that there exists a relationship between the cultural values of the items at issue, that is, between reading materials and audiovisual products, including sound recordings, and the standards of right and wrong conduct maintained in China. In Australia's view, China is not able to rely on the cited UNESCO instruments to demonstrate such a relationship. China has not taken account of the aspirational status of the UNESCO Universal Declaration on Cultural Diversity. At the same time, it has ignored article 20(2) of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions. Article 20(2) states: "nothing in this Convention shall be interpreted as modifying rights and obligations of the Parties under any other treaties to which they are parties". According to WTO decision, China has likewise failed to show that the application of its measures satisfies the requirements of the chapeau of article XX (5). However, even if a measure is "necessary", its application must also constitute neither a "means of arbitrary or unjustifiable discrimination" nor a "disguised restriction on international trade".
This case illustrate quite explicitly that cultural exceptions can only be claimed and defended if they are not suspicious on economic grounds. The challenge of the "Trade and Culture" nexus lies in designing workable legal mechanisms for distinguishing between genuinely cultural national regulatory measures, on one hand, and measures whose effect is merely to distort international trade, on the other: between cultural protection and cultural protectionism.
Are trade and culture really conflicting values, opposing interests? GATT article XX provides an example of a device in connection with the problem of trade and other values. However, although article XX is restricted to certain domestic policies that WTO Members have identified as legitimate, this does not necessarily mean that all other domestic policies (including policies regarding cultural products) are illegitimate for the purposes of WTO law.
If the basic article XX demonstrated anything, it is that the WTO is an extremely creative and flexible body when its Members have the will to achieve something. Several legal and academic observers have commented that the Convention needs WTO agreements more than WTO agreements needs the Convention. It says, in particularly, that the Convention grants virtual carte blanche to national discrimination in all relevant aspects of commercial activity, including the provision of direct subsidies as long as these national measures can fit into a framework of "cultural policies". The absences of a dispute settlement system, the vagueness of the convention text are also the main arguments that underlie this position. Who needs whom and to what extent is a debate for another paper?
In order to make the WTO framework more culture conducive, there are a number of ways in which this could be achieved. Let us underline two possibilities: one possibility is to introduce a "cultural" exception in the text of the WTO Agreements, similar to the ones existing for accommodating health or environmental concerns (article XX). One could also suggest amending the text of the Preamble of the WTO Agreement to include the goal of cultural diversity next to that of sustainable development. This would allow a Panel or the Appellate Body to interpret contested trade measures having the overarching objective of cultural diversity in mind, thereby balancing the interests at stake in the concrete conflict. The second, is the creation of a procedural link between the WTO and the UNESCO rules, possibly through a ministerial decision, which "would oblige Members, in cases of conflict between trade and culture, to take into account the UNESCO Convention when interpreting and applying WTO law or entering into negotiations leading to an amendment of the WTO framework" (6).
The discussion on "trade values" and "non-trade values" is extremely over politicised and often resembles a clash between two religions that find no communication path between them. Nevertheless, the ambitious role assigned to the CCD by its proponents is to go beyond the current status-quo. Adopting all these proposals is obviously difficulty. Who knows what the future is made. Wait and see.
(2) See Ivan Bernier, « Les relations entre la convention de l’Unesco sur la protection et la promotion de la diversité des expressions culturelles et les autres instruments internationaux : l’émergence d’un nouvel équilibre dans l’interface entre le commerce et la culture », juillet 2009, http://www.diversite-culturelle.qc.ca.
(3) WT/DS363/1.
(4) Panel Report on US – Gambling, para. 6.465 ; Appellate Body Report on US – Gambling, para. 299.
(5) The chapeau of article XX contains three tests for the application of measures for which justification under article XX could be sought: no "arbitrary" discrimination between members where the same conditions prevail, no "unjustifiable" discrimination between members where the same conditions prevail, and no disguised restriction on international trade.
(6) For more information, see Mira Burri Nenova, « Trade and culture: making the WTO legal framework conducive to cultural considerations », NCCRWorking Paper, n°2008, 20 November 2008.
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