The New Cultural Diversity Convention and Its Implications on the WTO International Trade Regime: A Critical Comparative Analysis
Khachaturian, Alex, Texas International Law Journal
On October 20, 2005, 148 nations from the United Nations Educational, Scientific and Cultural Organization (UNESCO) approved the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Convention).1 Only two nations, the United States and Israel, voted against the Convention.2 This Convention was the culmination of almost two years of drafting, a process set in motion by the approval of the 2001 Universal Declaration of Cultural Diversity (Declaration) and anticipated by UNESCO's historical treatment of cultural goods and services.
The goal of the Convention is to preserve global cultural diversity, and it empowers nations to affirmatively protect their own cultures by, among other measures, restricting the import of competing cultural goods and services from other countries. Such a trade measure would seem contradictory to the generally liberal international trade regime set out by the World Trade Organization (WTO) agreements, particularly the General Agreement on Tariffs and Trade (GATT).3 Although the Convention stresses "mutual supportiveness" with other treaties such as the GATT, it also insists that it must not be "subordinat[ed]" to these other treaties.4 The United States couches its objections to the Convention in terms of preferability of democratization and increased access as ways to promote cultural diversity. But as the world's leading exporter of movies, television programs and other audio-visual cultural products,5 the United States faces a potentially significant restriction of its imports. With the Convention operative in February 2006, the stage is set for a conflict between a WTO nation that might attempt to restrict the import of cultural goods and services under the Convention, and the United States, who will likely assert the supremacy of the WTO agreements to which both nations are parties over the Convention it does not recognize.
In this paper, I attempt to predict what will happen in such a conflict by analyzing (1) whether the Convention and the GATT can be reconciled, and (2) if they cannot, who shall decide the conflict between them and how they might do so. I begin by highlighting the special status and inclusive definition given to "cultural goods and services," which present a case for pulling these goods and services out of the WTO framework. Next, I discuss the various trade measures explicitly and implicitly endorsed by the Convention under the headings of "promotion" and "protection," and analyze their validity within the framework of the GATT and WTO jurisprudence. Finding the most potentially effective of these measures to be unavailable within that framework, I move on to pit the Convention against it, under the rules governing conflicts between international agreements. Finally, after finding that the GATT will trump the Convention in such a conflict, I inquire whether the Convention might at least influence the WTO Dispute Settlement Body (DSB) interpreting the GATT in trade disputes. In doing so, I find that the principle of "evolutive interpretation," along with prior DSB jurisprudence, offers hope to champions of the Convention who wish to protect and promote cultural diversity while remaining in good standing with the WTO.
II. THE CONVENTION AND ITS CONTROVERSIAL PROVISIONS
The Convention represents the execution of an action plan set out by UNESCO in the 2001 Universal Declaration. It reaffirms that instrument's recognition of cultural diversity as "the common heritage of humanity,"6 and stresses its status as a crucial element for "sustainable human development."7 In keeping with these underlying principles, the Convention recognizes that cultural goods and services "have both an economic and a cultural nature . . . and must therefore not be treated as solely having commercial value."8 This notion of a dual nature provides the intellectual foundation for the argument that cultural goods and services should be considered as lying outside the WTO trade regime, or at least must require an expansive interpretation of that regime's conventions. …