Academic journal article Asia Pacific Law Review

Factoring Cultural Element into Deciding the 'Likeness' of Cultural Products: A Perspective from the New Haven School

Academic journal article Asia Pacific Law Review

Factoring Cultural Element into Deciding the 'Likeness' of Cultural Products: A Perspective from the New Haven School

Article excerpt

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I. Introduction

The McDougal-Lasswell-Reisman approach to international law, otherwise known as the 'New Haven' School, by borrowing and adapting the tools of a variety of social science disciplines - from economics and political science to psychology and sociology - has developed a 'policy-oriented jurisprudence'.1 It requires that those who apply the law need to 'consider every statement presented as "law" in terms of its policy consequences'.2 For New Haven scholars, law is a process of decision that is both authoritative (ie conforms to the expectation of rightness held by members of the relevant group) and controlling (ie enjoys effectiveness over members of the group).3 Therefore, the approach is concerned with both subjective perspectives and the objective behaviour of states in assessing international rules.4

The 'New Haven' School is systematically and deliberately contextual, multi-method and goal oriented.5 This 'constructive jurisprudence of problemsolving', was situated in a larger context of world social events and processes, which stressed that international law could not be insulated from international politics and required an interdisciplinary approach to analyse international legal issues.6 For any legal task, the School identifies the intellectual tasks involved as the clarification of goals, the description of past trends to assess the degree of achievement of those goals, the identification of conditioning factors that may have influenced past trends, the projection of future decisions in order to assess the likelihood of achieving goals, and in circumstances in which a projected flow of decisions is likely to be discrepant from those goals, the invention of alternative methods of goal achievement.7 The unique virtue of this intellectual framework is that it allows all aspects of a problem to be addressed - to know the entire playing field and all the players. Legislators are well served in undertaking this analysis before prescribing solutions to pressing social problems.8

The touchstone of a good theory is its practical application. The essential insights of the New Haven approach - its focus on process and its policy orientation have been influential in the development of later theories about international rules and norms. This article utilizes the powerful analytical tools developed by the 'New Haven' school to explore a key issue in international trade of cultural products, ie the 'likeness' of imported and domestic products. The issue is crucial to determining the competitive relationships that exist among the products at issue for the purpose of trade regulation (particularly with respect to Most-Favoured-Nation Treatment and National Treatment). In particular, this article examines the 'like products' concept in GATT Art III9 to illustrate the treatment of culture under the WTO framework and further studies as to whether we should factor cultural elements into judging the 'likeness' among cultural products, and if so, how.

To achieve this goal, the article first summarizes the general jurisprudence of GATT/WTO on 'like products', and then dissects how the 'likeness' issue in national treatment was decided in previous trade disputes concerning cultural products by studying the findings of the WTO Dispute Settlement Body on 'like products' in two cases, Canada-Periodicals and China-Publications and Audiovisual Products. This constitutes an analysis of past trends in light of the insights of the 'New Haven' School. Subsequently, the article turns to the 'aim and effect' approach and tries to find out if this approach could provide the flexibility of factoring cultural elements into deciding the 'likeness' of cultural products. Finally, the author offers some concluding remarks with reference to the value analysis endorsed by the 'New Haven' School and appeals to a more culture-friendly solution with a view to reconciling trade norms and culture values in the international legal framework. …

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