Implementing the UNESCO Convention in EU's Internal Policies

This briefing note was prepared by invitation from the European Parliament's Committee on Culture and Education. It provides an analysis of how the existent EU internal policies reflect the spirit and the letter of the UNESCO Convention on Cultural Diversity. The note suggests further ideas on how the EU may calibrate current practices and explores in a forward-looking manner the possibilities for the Convention’s implementation in future internal policies, understood both as hard and soft EU legal instruments. Particular attention in this query is paid to digital media and their regulatory implications.

Cultural Diversity

The concept of cultural diversity has emerged as an influential one having impact on multiple policy and legal instruments especially following the adoption of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions in 2005. The discussions on its appropriate implementation are however profoundly fragmented and often laden with political considerations. The present brief paper offers some thoughts on the meaning of cultural diversity and its implementation in the digital networked environment, taking into account the effects of digital media upon cultural content creation, distribution and consumption. The paper was meant to be part of a document prepared by a civil society organisation for the OECD ministerial meeting in Seoul 2008 on the future of the Internet.

Genetic engineering and the world trade system

While the WTO agreements do not regulate the use of biotechnology per se, their rules can have a profound impact on the use of the technology for both commercial and non-commercial purposes. This book seeks to identify the challenges to international trade regulation that arise from biotechnology. The contributions examine whether existing international obligations of WTO Members are appropriate to deal with the issues arising for the use of biotechnology and whether there is a need for new international legal instruments, including a potential WTO Agreement on Biotechnology. They combine various perspectives on and topics relating to genetic engineering and trade, including human rights and gender; intellectual property rights; traditional knowledge and access and benefit sharing; food security, trade and agricultural production and food safety; and medical research, cloning and international trade.

Climate Change and International Law. Exploring the Linkages Between Human Rights, Environment, Trade and Investment

Mapping the relevant principles and norms of international law, the paper discusses scientific evidence and identifies current legal foundations of climate change mitigation adaptation and communication in international environmental law, human rights protection and international trade regulation in WTO law. It briefly discusses the evolution and architecture of relevant multilateral environmental agreements, in particular the UN Framework Convention on Climate Change. It discusses the potential role of human rights in identifying pertinent goals and values of mitigation and adaptation and eventually turns to principles and rules of international trade regulation and investment protection which are likely to be of crucial importance should the advent of a new multilateral agreement fail to materialize. The economic and legal relevance of rules on tariffs, border tax adjustment and subsidies, services and intellectual property and investment law are discussed in relation to the production, supply and use of energy. Moreover, lessons from trade negotiations may be drawn for negotiations of future environmental instruments. The paper offers a survey of the main interacting areas of public international law and discusses the intricate interaction of all these components informing climate change mitigation, adaptation and communication in international law in light of an emerging doctrine of multilayered governance. It seeks to contribute to greater coherence of what today is highly fragmented and rarely discussed in an overall context. The paper argues that trade regulation will be of critical importance in assessing domestic policies and potential trade remedies offer powerful incentives for all nations alike to participate in a multilateral framework defining appropriate goals and principles.

Unfair Advantage: An Intriguing Example of Legal Transformation in the Swiss Private Law

This paper demonstrates a mixed approach to the theme of the instrumentality of law by both analysing the goal of a legal transformation and the techniques adapted to achieve it. The correct recognition of a certain practical necessity has lead the Swiss Federal Tribunal to an intriguing judgement “Fussballclub Lohn-Fall” of 1997. The legal remedies provided for cases of unfair advantage have been then creatively modified praeter legem. The adaptation was strongly influenced by foreign legal patterns. The Swiss Code of Obligations of 1911 provides a norm in art. 21 on unfair advantage (unconscionable contract), prescribing that if one party takes unjustified advantage over the weaknesses of another in order to receive an excessive benefit, such a contract is avoidable. Its wording has been shaped over a hundred years ago and still remains intact. However, over the course of the 20th century the necessity for a more efficient protection has arisen. The legal doctrine and jurisprudence were constantly pointing out the incompleteness of the remedies provided by art. 21 of the Code of Obligations. In the “Fussballclub Lohn-Fall” (BGE 123 III 292) the Swiss Federal Tribunal finally introduced the possibility to modify the contract. Its decision has been described as “a sign of the zeitgeist, spirit of the time”. It was the Swiss legal doctrine that has imposed the new measure under the influence of the German “quantitative Teilnichtigkeit” (quantitative partial nullity). The historical heritage of the Roman laesio enormis has also played its role.

Trade Law and Responsible Investment

There is broad international agreement that investment flows to the agricultural sector in developing countries need to be increased. In addition, there is broad agreement that such investments need to be responsible, and that they will only be responsible and beneficial to poor people if they contribute to the prudent development of the agricultural sector. Less studied is the link between responsible investment and trade. In this brief, the assumption is made that responsible investment flows presume a responsible trade regime, i.e. a trade regime that contributes to the prudent development of the agricultural sector in developing countries. Such a prudent, sustainable trade regime will promote investments in the agricultural sector that are responsible to the people involved and to the environment. It builds the “channel” through which investments flow. By contrast, an unsustainable trade framework will create an investment climate that promotes problematic investment practices.