The UNESCO convention may be less at odds with the WTO than Prof. Pauwelyn's initial assessment suggests, for two reasons: the convention's substance, and its regulation of conflicts with other treaties.

The convention indeed holds potential for trade protectionism based on "cultural policies," but it cannot be understood only as a blunt instrument for protecting cultures against globalization.  It recognizes that cultural diversity is a dynamic concept that depends upon the free flow of ideas, "nurtured by constant exchanges and interaction between cultures" (para. 11, preamble). This is reflected in some of the convention's guiding principles (article 2): the principles of equitable access and openness to cultural expressions from all over the world. These principles translate into the operative article 7 'best efforts' obligation of states to create in their territory an environment conducive to access to "diverse cultural expressions from within their territory as well as from all over the world." The convention also includes undertakings aimed at allowing better access for cultural activities, goods and services from developing countries to the global market in general and to developed countries in particular; at facilitating the international mobility of artists from developing countries (article 14); and at allowing minorities to gain access to their own cultural expressions – presumably even if they are foreign (article 7(1)(a). These provisions support culture-based trade expansion rather than restriction. They will conceivably give rise to conflicts that are internal to the UNESCO convention, between protectionist cultural policies and the principles of access and openness.

As for the regulation of conflicts with other treaties, article 20 suggests that in case of direct conflicts between the convention and the WTO, the latter should have the upper hand in any forum. The article 20(1)(b) requirement to take the convention "into account" in the application and interpretation of other treaties can be discharged through good faith contextual reference to the convention (which as noted, itself goes both ways in its treatment of trade). The language of Article 20(2), whereby nothing in the convention (including the obligation to take the convention into account) can modify concurrent treaty rights and obligations, is significantly stronger.

In support of this interpretation, the 2004 preliminary draft of the convention included an option that would have granted limited normative priority to cultural protection. This option was ultimately dropped, leaving Article 20(2) as the operative provision in case of conflict with another treaty. Thus, the convention might be referred to as part of the context for the purpose of interpreting WTO rights and obligations, but not as a carved-out treaty that can 'trump' them. This is not inconsistent with existing WTO Appellate Body jurisprudence. Moreover, since the WTO agreements do not include a general cultural exception, the scope for recourse to the UNESCO convention is arguably a priori limited.

About the author
Tomer Broude, an ASIL member, is a lecturer in law at the Hebrew University Faculty of Law and Department of International Relations. He is the author of International Governance in the WTO: Judicial Boundaries and Political Capitulation (London: Cameron May, 2004) and recently of "Taking 'Trade and Culture' Seriously: Geographical Indications and Cultural Protection in WTO Law" 26(4) University of Pennsylvania Journal of International Economic Law (2005).