Tuesday, October 23, 2012

Culture, human rights and the WTO

Tania Voon has written an interesting piece on the intersection of cultural values, human rights and WTO in this piece. Human rights does not normally figure in the discussion in international trade law and policy. The international law discourse on human rights having its basis in the UN Charter is seen more as a political discourse not finding its way in the international economic law and policy domain.

Tania Voon analyses WTO disputes pertaining to audiovisuals and food related risks and raises important issues of the role of cultural preferences in WTO jurisprudence. She concludes:
"The limited reflection on human rights within the WTO and the reluctance by many Members to introduce non-WTO public international law into the WTO legal framework (whether implicitly or explicitly) may help explain why WTO Members are having such difficulty in agreeing on how to treat subject matters related to culture such as traditional knowledge and genetic resources in the current negotiations. The failure to reach agreement in the Uruguay Round (or subsequently) on the proper approach to audiovisual products and printed publications may also make Members wary of opening discussions premised on culture or human rights in a general sense. Instead, Members may find themselves focused on technicalities such as the modalities of negotiation and the wording of minor amendments to the existing agreements, even where broader principles (such as adherence to the general objectives of the CBD) are agreed. However, the pragmatic acceptance of a wide range of perspectives on culture and its relationship to trade in the WTO has in some ways been beneficial. Culture is properly a secondary consideration in the formulation of many WTO rules, including some that might appear directly related to culture but that actually have different purposes, such as geographical indications. A healthy disagreement among WTO Members about the relationship between the WTO, culture and human rights may assist in keeping the rules under close examination and encouraging greater contemplation of that relationship within the organisation in future."
Article XX General Exceptions dealing with public morals would come the closest to giving flexibility to WTO members to engage with the multilateral system keeping in mind their cultural context. The issue of a particular WTO member's cultural context intersecting with international trade rules is in two ways;

1. When a country exercises its domestic regulatory choice based on its cultural context, it can be challenged in the WTO as being protectionist or unreasonably restrictive. The debate then revolves around whether a country has domestic regulatory space to pursue its cultural values.

2. When a country's products are impacted by a measure of another WTO member on the grounds of "cultural values", it impacts international trade and can be a "protectionist" tool by certain countries to protect domestic industry.

Thus, the adoption of values of human rights, labour rights, cultural mores in international trade law must be viewed with a bit of caution keeping in mind the issue of these measures becoming defacto non tariff barriers. In what circumstances they are permitted and to what extent they can limit free flow of goods across borders is a contentious one. It involves at times a threadbare interpretation of the  The political economy of the use of cultural rights to further one's national interest is a genuine threat.However, the need to engage in identifying the intersection is nevertheless necessary.

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