New Development Of "Trade And Culture Issue": The Cultural Diversity Convention's Impact On WTO

As the pace of trade liberalization proceeds unabated, almost all the countries are involved in this proceeding all over the world, and get benefits from it to some extent. But, meanwhile, many countries also recognize the problems brought by trade liberalization, and"trade and culture issue"is one of those. Because of the openness, so many foreign products rush into the domestic market including films that the cultural value of export countries badly spreads all over the import countries, and this may cause domestic cultural impoverishment and lose national identity. Therefore, many members of WTO adopt the measures on cultural policy which may violate the rules of multilateral trade. But WTO of rules has no enough space for cultural measure to live. The members who adopted the cultural measures lose the lawsuit in the dispute about trade and culture.Under the circumstances, UNESCO adopted by a majority of votes the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (CCD), and it has gone into force on 18 March 2007 with the ratifications of 50 countries. Do the times when culture counterbalances trade just because of Cultural Diversity Convention? Does this cause the conflicts of WTO rules? Or further modify the multilateral rules in order to protect cultural diversity? This is the main issue discussed in this paper.Chapter One focuses on all the aspects of"trade and culture issue"."Trade and culture issue"began in GATT, and it is debated in WTO /GATT aimed at trade liberalization. Just because liberal trade came out and developed, this promotes cultural products to industrialization. Globalization actually improves the trade ability of cultural products and this makes it easier to participate in trade liberalization. EU believes the commercialization of culture infringes cultural identity. Therefore, these countries adopted all kinds of cultural measures such as domestic content measure in order to prevent trade liberalization from infringing cultural diversity; they tried to use cultural exception and cultural specific commitments to set cultural measures free from multilateral rules and try to protect cultural value under the framework of WTO. But both of them got failed due to the prevention of US.The economic root and consideration about politics are behind the conflict of trade and culture. US opposes to set up the mechanism which protects cultural value in the framework of WTO , because it wants to maintain the position of the biggest export country and spreads American ideology in order to consolidate the position of big-power country. From the essence of cultural identity, it means there are local, autonomous, distinct and well-defined and culturally sustaining connections between geographical place and cultural experience. This connection is not just description of cultural belonging, but also is a kind of local treasure and it reflects national identity,belief and value , and it determines country's independence and continuity .Meanwhile this connection is very fragile and trade liberalization infringes cultural identity as activator. So there comes a fierce conflict of trade liberalization and cultural value.Chapter Two mainly explains the effects and sense of Cultural Diversity Convention which is adopted by UNESCO towards"trade and culture issue", and discuss the parts of this convention conflicting with WTO.The actions of members of WTO in WTO and UNESCO are very important for Cultural Diversity Convention to form and develop. Although the mechanism protecting cultural value are not found in the framework of WTO, cultural exception and diversity promoted by advocates are meaningful for convention to make. However, in the framework of UNESCO, Diversity Convention have experienced four phases under the endeavors of countries and other international organizations, and finally been adopted. This Convention guides developing countries which have not met"trade and culture issue". And meanwhile, it filled up the lacuna of international law about the protection of cultural value.Cultural Diversity Convention must conflict between WTO on behalf of culture. The aims of Convention require members realize the cultural value of some products and believe the right of adopting the cultural policy measure derives from sovereignty. There obviously is possibility violating WTO rules. The specific articles: Article 6 asks countries to adopt the measures to protect cultural identity such as financial support; the cultural safeguard measure of Article 8 grants the right to protect cultural value; Article 7 prescribes universal obligations of countries. These concrete regulations are obviously incompatible with the national treatment principle of WTO.Although Cultural Diversity Convention regulates some universal obligations, it does not have implementary mechanism like WTO. This leads rights and obligations not to have compulsory force. Therefore Convention does not mean the end of"trade and culture issue". On the contrary, it will cause the new discussion about trade and culture.Chapter Three focuses on the Convention's impact on WTO. The regulations relative to"culture issue"in WTO system includes: GATT Article 4-screen quota,GATT Article 20 and GATS Article 14-general exceptions and GATS specific commitment schedule. Screen quota is less important for variable forms of cultural products than past; general exceptions must coincide with the strict standards; although specific commitment provides some flexibility for service trade, it is based on the package agreements of WTO, and it is on the agenda of multilateral negotiations sooner or later. So the existing rules of WTO are very limited at protecting cultural value.Article 20 of Convention prescribes the relationship between this Convention and other agreements. On one hand, this Article requires members to perform obligations of Convention and other agreements, and confirms the relationship is supportive, and asks members to consider the relative articles of Convention when apply and explain other treaties. On the other hand, Convention declares that it should not be explained in the form of modifying other agreements. This obeys the international customary law about modifying treaties in Vienna Convention on the Law of Treaties. So Cultural Diversity Convention does not modify the existing rules of WTO. Above all, Convention's impact on WTO is very limited, more political effects than legal ones.But, when WTO deals with the relationship between trade and culture, it should consider the requirements from civil society and desirability of protecting cultural diversity: it is more advisable and factual performance for WTO to found certain connection between multilateral trade system and Diversity Convention in the procedural framework of WTO. On one hand, this will give the chance to think over the Articles of Diversity Convention relative to the dispute about trade and culture; on the other hand, this method can not infringe the aim and integrality of multilateral trade system.