Old Issues but New Tricks: China uses the UNESCO Cultural Diversity Convention in a WTO dispute

Old Issues but New Tricks: China uses the UNESCO Cultural Diversity Convention in a WTO dispute

Nicole Aylwin is a Ph.D. Candidate in the Communication and Culture Graduate Programme at York University.

This past December the World Trade Organization appellate body ruled against China in a dispute with the United States. The US initiated the dispute in 2007 to address three concerns: 1) China was prohibiting foreign businesses from importing publications, music, DVDs and other audiovisual products; 2) China was prohibiting foreign businesses from distributing reading materials and music electronically; and 3) China was imposing burdensome requirements on certain products before they could be distributed.  In short, the US alleged that China was using a state administered “content review” mechanism to prevent the distribution of foreign goods. China defended itself against these allegations by arguing that the goods in question, such as finished audio-visual products, are cultural goods, which have a significant impact on public morals. Thus, China should be allowed to impose a high level of protection on these goods and determine the way in which they enter into the country (if at all).

In its defense against the allegations, China attempted to establish a clear link between cultural goods and social, cultural, moral and political life. This is not the first time the WTO Dispute Settlement Body has seen a country attempt to establish a link between the protection of its cultural goods and its cultural life.  In 1998, Canada attempted to draw on this connection in a dispute with the US that resulted in a very high-profile loss (the split-run magazine decision).  This is the first time, however, that a country drew on the UNESCO Universal Declaration on Cultural Diversity (the Declaration) and the new legally binding Convention on the Protection and Promotion of the Diversity of Cultural Expressions (the Convention) in order to do so.

By referencing Article 8 of the Declaration, which asserts that cultural goods are “vectors of identity, values and meaning” and by referring to the Convention to emphasize the influence of cultural goods on societal values, China put into action the political discourse of cultural diversity, which governments in other countries have been slow to do in the international legal arena.

What is interesting about China’s use of the Declaration and Convention is that they do not use them to defend against the accusation that they are violating existing trade agreements, but rather they use them to establish that cultural goods not only have commercial value but also cultural value. Getting the WTO to even acknowledge this argument is no small feat. As practitioners and scholars working in the area of diversity and policy issues have pointed out, the Convention is unlikely to ever act as a recognized defense against liberalized trade rights—a view clearly supported by the WTO appellate body and all three third parties who noted that the Convention may not be interpreted as “modifying rights and obligations of the Parties under any other treaties to which they are parties” (the Convention, Article 20 (2))—however, by entering the argument into public record China has taken a step towards using the Convention and Declaration to define the relationship between cultural diversity and cultural goods.

Much like the 20 year debate surrounding the Draft Declaration on Indigenous Peoples helped to create a set of minimal normative standards in regard to the treatment of indigenous peoples long before the final Declaration was adopted, the way in which the Declaration and the Convention become used across multiple fields of practice, including trade negotiations, will impact the way in which cultural diversity norms, standards and models come to be defined.

The fact that this WTO decision was yet another ‘big win’ for the US is perhaps the least significant part of this decision. This decision is an important moment that deserves attention from civil society groups, policy activists, intellectual property lawyers and anyone interested in the emerging international cultural policy framework. Such a decision can influence the direction policy will take, how diversity is defined and what diversity will look like in the future.