The UNESCO Convention on Cultural Diversity, and the WTO: Diversity in International Law-Making?
November 15, 2005
With surprising ease, 148 countries meeting in Paris last month signed off on a new UNESCO convention to protect cultural diversity.
Commentators have labeled the new treaty as a thinly disguised attempt, led by France and Canada, to offer a shield against the spread of American culture, in particular Hollywood movies. On the premise that cultural goods cannot be treated as mere commodities, the text grants nations the sovereign right to protect and promote the diversity of cultural expressions within their territory against the sweeping tide of globalization (Articles 5 and 6). The convention recognizes, moreover, that special situations may arise where cultural expressions (movies, music, magazines and other cultural industries) in a state's territory are at risk of extinction, are under serious threat, or are otherwise in need of urgent safeguarding. In such cases, states parties may take "all appropriate measures" to protect and preserve cultural expressions in a manner consistent with the provisions of the convention (Article 8). Although an International Fund for Cultural Diversity is set up (to be funded by "voluntary contributions made by the Parties," Article 18), the convention is, ultimately, more a shield granting governments the right to favor domestic cultural activities, goods and services, than a positive commitment to ensure minimum standards of protection or to allocate resources.
The pact was overwhelmingly accepted. Only two UNESCO members, the United States and Israel, objected. The United States called the treaty "deeply flawed," protectionist, and a threat to freedom of expression.
Whatever the merits of how best to sustain minority cultures -- through public institutions, subsidies and screen quotas, as the convention implies, or rather by vigorous antitrust rules and the free flow of ideas, as its critics retort -- the episode offers an intriguing glimpse into the increasingly complicated world of international law-making.
The major bone of contention in the negotiations was not about finding the most effective policy for different cultures to flourish. It was rather about how the new treaty --explicitly permitting the protection of cultural industries - would relate to existing free trade rules at the WTO. But even that question was left unresolved in article 20 of the convention - an article that goes both ways.
Most of the countries negotiating at the WTO and UNESCO are one and the same, but the decision-making rules at the WTO in Geneva are not the same as those at UNESCO in Paris. At the WTO nothing moves without consensus, including in particular the go-ahead of the United States. A new treaty at UNESCO, however, can be made by majority vote (even though it is then binding only on those who ratify it).
Are France and Canada hereby shrewdly circumventing their WTO commitments? Not necessarily. International law is not made only at the WTO, and even the WTO leaves the door open for rule creation elsewhere. This exit option for like-minded countries to further liberalize trade (as they did by creating NAFTA or the EU) or to refine the application and exceptions to free trade principles (as they did in environmental agreements and now at UNESCO) is a crucial safety valve to enable legal refinement and to cater for the enormous diversity between the WTO's 150 members. In the long run it also supports the legitimacy of the WTO itself by taking steam off the argument that the WTO is dominated by Western capitalist values.
The will of 148 countries meeting at UNESCO must therefore be respected, also by the WTO. Yet a major problem remains. What about the nay-sayers? Can France now justify trade protection for French language books or even foie gras as against the United States? Can Canada now safely protect its magazine industry against the sweeping force of US bestsellers such as Sports Illustrated? According to the traditional rule that states cannot be held by laws without their consent, the answer should be no, so long as the United States is not a party to the new UNESCO convention. Yet, in cases such as US -- Shrimp, the WTO has already referred to outside environmental treaties that were not ratified by all disputing parties. It did so following what it called "evolutionary" interpretation "in the light of contemporary concerns of the community of nations." It could be argued that agreement by 148 countries over the need and ways to protect cultural diversity amounts to an expression of such a "contemporary concern of the community of nations." But a counter-argument would surely stress the vehement US objections against the new treaty.
If ever this dispute were to reach the WTO -- not an unlikely event given the unique compulsory nature of its dispute settlement process -- the WTO will have to walk a fine line between two objectives. On the one hand, it must respect international law validly made and agreed to elsewhere so as to respect the wide diversity of its membership and to allow for further refinement of its own rules (here UNESCO rules in a WTO dispute between, say, France and Canada). On the other hand, the WTO must respect the cardinal principle, grounded in democratic decision-making, that no state should be held by international law that it has consistently objected to (here the United States, which cannot be bound by the UNESCO convention in a WTO dispute with, for example, France).
In any event, the WTO presumably would not wish to isolate itself from the rest of the international law-making world by closing its eyes to any legislative initiative agreed on outside its own building, be it consented to by the disputing parties or not. There is room for diversity both in Paris and in Geneva.
About the author
Joost Pauwelyn, an ASIL member, is a former WTO official now teaching international law at Duke Law School. He is the author of "Conflict of Norms in Public International Law," Cambridge University Press, 2003, and, most recently, "The Transformation of World Trade," 104 Michigan Law Review 1 (2005).
 An advance copy of the text of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (adopted, 20 October 2005) can be found at http://www.unesco.org/culture/culturaldiversity/convention_en.pdf
 Countries Turn Backs on Hollywood, BBC News, UK Edition, 20 October 2005, available at http://news.bbc.co.uk/1/hi/entertainment/arts/4360496.stm
 The hortatory language in Article 7 - which sets out the convention's main obligations - is telling: "Parties shall endeavour to create in their territory an environment that encourages..." and "Parties shall also endeavour to recognize the important contribution of ...".
 Article 20 of the Convention, entitled "Relationship to other treaties: mutual supportiveness, complementarity and non-subordination," directs, in its first paragraph, that other treaties must be interpreted and applied taking into account the new UNESCO convention (stressing further that the new convention is not subordinated to any other treaty) but, in its second paragraph, admonishes that the new Convention does not modify other treaties.
 The pivotal term "cultural expressions" is defined in Article 4.3 as "those expressions that result from the creativity of individuals, groups and societies, and that have cultural content." Cultural content, in turn, refers to "the symbolic meaning, artistic dimension and cultural values that originate from or express cultural identities" (Article 4.2).
 US -- Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, 12 October 1998, para. 129.