The multiplication of international organizations and dispute resolution bodies operating within their respective regimes have created a complex problem of fragmentation in international law – often difficult to reconcile. The problem is further aggravated when a dispute resolution body in a specialized field of international law is faced with a conflict with competing norms originating in another specialized branch of international law – external norms. Issues originating in these external norms are not soluble by simply choosing one interpretative tool over other, such as lex specialis or lex posterior derogate legi priori. The considerations to be accounted are much multifarious than that. At times, even before one moves to the stage of resolving conflict between competing norms, the fundamental question is whether an external norm to the specialized field deserves any consideration at all. The struggle for the so-called external norms is to earn the recognition that it deserves consideration and invocation in the specialized field in question.
The position of culture generally and cultural diversity in particular in the free trade regime of the World Trade Organization (WTO) is akin to this stage – a struggle for recognition. The institution of the WTO is founded on principles of trade liberalization and thus its focal point is eradication of all barriers in the path of free trade. An ill-fated debacle of the Havana Charter left behind an unbalanced regime of General Agreement on Tariff and Trade (GATT). Despites fallacies it remained strongly rooted in free trade principles and allowed limited justifications for non-compliance with the obligations stipulated under Article XX. The economic liberalization agenda attained its zenith with the creation of the World Trade Organization and various multilateral and plurilateral agreements. A heavy bent towards economic liberalization always remained in the newly created regime with little exceptions. Simultaneously, various competing norms originating in other concerns started emerging. The WTO did not expressly factor them in or never perceived that they would swell to a proportion where they would compete for preference. These norms were principles emanating in different treaties and declarations for the protection of the environment, labour standards and human rights. In the string of these competing norms the latest is cultural diversity – encapsulated in the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (hereinafter the UNESCO Convention), which entered into force on 18 March 2007. This
book presents an interesting account of recent surfacing of cultural diversity rights and their friction with the, by now well-established norms of free trade.
This book indeed explores a new area. Scholars have commented vividly in past on the conflict between free trade and non-trade norms in various manners. The studies have been a general theoretical assessment, where Member States have defended proceedings before the Dispute Settlement Body (DSU) by invoking their international obligations under other treaties of regimes. Scholars have enriched the literature with conflict between trade obligations and other specific areas – for example environment, human rights, labour standards and culture. This book is the first effort to look at the interaction between the specific norm of cultural diversity and free trade obligations, consequential conflict and methods of attenuating the fallout to counterbalance and strive for their co-existence.
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