Volume 42 | Number 1 Fall 2006
The New Cultural Diversity Convention and Its Implications on the WTO International Trade Regime: A Critical Comparative Analysis
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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. Pierre Curzi, co-chair for the Canadian Coalition for Cultural Diversity, stated: “The proposed UNESCO Convention . . . represents a landmark achievement [in obtaining recognition] in international law for the principle that cultural goods and services are fundamentally different from other goods and services. A book, or film, or piece of music is not the same as an automobile, or a computer.”9
The Convention’s definition of “cultural activities, goods and services” is broad enough to include Curzi’s examples and much more: an examiner must find only that goods or services “embody or convey cultural expressions.”10 One can imagine many goods and services that would qualify under the language of this definition, and this expansiveness is one of the aspects of the Convention to which the United States objects. Under the United States’ argument, the generality of the “cultural good or service” definition could enable nations to restrict import of any item for which a colorable claim of “cultural expression” can be made, whether or not such a restriction was made in the name of cultural diversity. “The problem is that the French and others are expanding the lists of cultural objects and things to now include wine and foie gras . . . . [Therefore,] we are not sure where the expansion of the lists of cultural goods will end.”11 Thus, a nation seeking to circumvent the WTO trade regime and restrict imports might attempt to use an expansive definition as a cover.
The central conflict with the WTO trade regime is the Convention’s empowerment of individual nations to determine and implement measures for protecting and promoting cultural diversity within their own territories. Article 6 of the Convention provides a non-exhaustive list of measures at a nation’s disposal including “regulatory measures” and “measures that, in an appropriate manner, prove opportunities for domestic cultural activities, goods, and services among all those available within the national territory.” Article 7 defines promotional measures as those which “create in their territory an environment that encourages” the creation of home-grown cultural goods and services, as well as access to those cultural goods and services of other nations. No specific examples of acceptable measures are given in either of these Articles. Article 8 makes clear that a nation has considerable power with regard to the protection and preservation of cultural expressions, sanctioning the use of “all appropriate measures” provided that the acting nation has found those expressions are “at risk of extinction, under serious threat, or otherwise in need of urgent safeguarding.”