• The Law Gazette

Free Trade vs. Right to Culture

In recent years, economic globalisation has had a profound impact on national cultures. Trade liberalisation and technological innovations, the driving forces behind the process of economic globalisation, have brought down many barriers that in the past obstructed the free cross-border circulation of cultural goods and services. People worldwide increasingly listen to the same music, watch the same movies and read the same books. Many artists, cultural policy makers and other stakeholders are concerned about the loss of global cultural diversity and the threat to the cultural identity of their countries.


In response to these concerns, the governments of many countries have sought to maintain or introduce measures that discriminate against foreign cultural goods and services or otherwise obstruct the trade in these goods and services. This monograph on Free Trade and Culture explores to what extent the law of the World Trade Organization allows countries to take unilateral measures for the protection or promotion of their national culture.


In discussions on the appropriateness of unilateral measures relating to cultural goods and services, the question often arises whether these measures are consistent with obligations under international law, and in particular the law of the World Trade Organization (the WTO). It is often assumed that WTO law significantly limits the ability of WTO Members to take measures relating to cultural goods and services.


CULTURE AND CULTURAL PROTECTIONISM

Cultures exist both within and across national borders. Through the dissemination of ideas, a cross-fertilization of cultures takes place, both at regional and international level. Due to the dynamic nature of ideas and values and their enhanced exchange, this phenomenon is likely to accelerate in the future. While legislators and policy makers will often refer to their national cultures and act in protection and promotion thereof, it is arguably more useful to regard cultures in terms of age group, ethnicity, race and societal class rather than in terms of nationality. People’s behavior, values and lifestyle patterns are defined according to those categories. In almost every nation, for example, there exists a particular ‘youth culture’ that more closely resembles its equivalent in other nations than other (demographic) groups within the same nation.


Rather than speaking of the protection and promotion of national cultures, policy makers should make clear which expressions of culture they want to protect and promote, irrespective of the question whether such expressions are national or not. However, this is rarely the case as and national policy makers generally refer to the protection and promotion of national cultures. Measures adopted by countries to protect or promote domestic expressions of ‘high culture’ and ‘ethnic culture’ are seldom the focus of international controversy. Rather, the debate within the WTO and other forums has focused on ‘popular culture’.


Finally, with regard to cultural products, some terminological confusion exists as to the meaning of the term ‘cultural products’. On the one hand, this term can be used as an equivalent of ‘cultural goods’. On the other hand, the term ‘cultural product’ is often used as an umbrella term for both cultural goods and services. For the purposes of the current analysis, it is important to distinguish between cultural goods and cultural services. The WTO rules applicable to measures for the protection or promotion of cultural products differ depending on whether these products are goods or services. Under WTO law as it currently stands, measures relating to cultural goods are subject to stricter disciplines than measures relating to cultural services.


GENERAL OVERVIEW OF WTO LAW

The World Trade Organization is the youngest of all the major international inter- governmental organizations and yet it is arguably one of the most influential in this time of economic globalization. The origins of the WTO lay in the General Agreement on Tariffs and Trade of 1947 (the ‘GATT’), which for almost fifty years functioned as the de facto international organization for trade. While the GATT was successful with respect to the reduction of tariffs, effectively addressing the intricate problems of international trade in goods and services in the era of economic globalization required a more ‘sophisticated’ institutional framework.


The law of the WTO is complex and quite specialised in nature. It deals with a broad spectrum of issues, ranging from customs duties and import quotas to food safety regulations, intellectual property rights and national security measures.


However, four groups of basic substantive rules and principles can be distinguished:

  • the principles of non-discrimination, including the most-favoured national treatment obligation and the national treatment obligation;

  • the rules on market access, including the rules on customs duties and quantitative restrictions;

  • the rules on unfair trade, including rules on subsidies; and

  • the rules on conflicts between trade liberalisation and other societal values and interests, primarily reflected in the general exceptions.


CONCLUSION

It is often assumed that the law of the WTO significantly limits the ability of its Members to take measures that protect or support national cultural goods and services. This probably explains why the WTO appears to have few friends among artists and cultural policy makers and is often regarded with animosity. To what extent WTO law allows WTO Members to take unilateral measures for the protection and promotion of their national culture.


The scope of many WTO obligations may be less broad than often thought. This is the case, for example, for the nondiscrimination obligations of the GATT 1994 and the GATS, in which the concept of ‘likeness’ plays an important role. If creatively interpreted and applied, this concept can ‘save’ a number of (carefully formulated) cultural measures from inconsistency with WTO law. While not all WTO Members will agree, it can be argued that cultural goods and services using the national language(s) are not ‘like’ cultural goods and services using another language (e.g. English) and that therefore the nondiscrimination obligations do not apply between these goods or services.


WTO Members have a reasonable degree of freedom to take measures for the protection and promotion of cultural goods and services because both the GATT 1994 and the GATS provide for exceptions from basic obligations. These exceptions allow Members to take otherwise inconsistent measures that pursue important noneconomic societal values. While the protection or promotion of cultural diversity or cultural identity is not explicitly mentioned in the exhaustive lists of these societal values and interests in the GATT 1994 and the GATS, a number of otherwise inconsistent measures may nevertheless be justified in this manner. Many WTO Members have not made many market access or national treatment commitments in the cultural services sectors. As long as such commitments are not made, the GATS prohibition on market access barriers (i.e. primarily quantitative restrictions), and the GATS obligation of national treatment (which also covers subsidies to service suppliers) do not apply to cultural services.


ABOUT THE AUTHOR

This blog has been authored by Asad Zahidi who is a 4th Year B.B.A., LL.B. (Hons.) student at Chanakya National Law University, Patna.


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