Trade and Culture in International Law : Paths to (Re)Conciliation

The UNESCO Convention on cultural diversity marks a wilful separation between the issues of trade and culture on the international level. The present article explores this intensified institutional, policy- and decision-making disconnect and exposes its flaws and the considerable drawbacks it brings with it. These drawbacks, the article argues, become particularly pronounced in the digital media environment that has impacted upon both the conditions of trade with cultural products and services and upon the diversity of cultural expressions in local and global contexts. Criticising the strong and now increasingly meaningless path dependencies of the analogue age, the article sketches some possible ways to reconciling trade and culture, most of which lead back to the WTO, rather than to UNESCO.

Trade and Culture : Keep the Border Fuzzy, Please

The relationship between trade and culture can be singled-out and deservedly labelled as unique in the discussion of 'trade and ...' issues. The reasons for this exceptional quality lie in the intensity of the relationship, which is indeed most often framed as 'trade versus culture' and has been a significant stumbling block, especially as audiovisual services are concerned, in the Uruguay Round and in the subsequent developments. The second specificity of the relationship is that the international community has organised its efforts in a rather effective manner to offset the lack of satisfying solutions within the framework of the WTO. The legally binding UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions is a clear sign of the potency of the international endeavour, on the one hand, and of the (almost desperate) desire to contest the existing WTO norms in the field of trade and culture, on the other. A third distinctive characteristic of the pair 'trade and culture', which is rarely mentioned and blissfully ignored in any Geneva or Paris talks, is that while the pro-trade and pro-culture opponents have been digging deeper in their respective trenches, the environment where trade and cultural issues are to be regulated has radically changed. The emergence and spread of digital technologies have modified profoundly the conditions for cultural content creation, distribution and access, and rendered some of the associated market failures obsolete, thus mitigating to a substantial degree the 'clash' nature of trade and culture. Against this backdrop, the present paper analyses in a finer-grained manner the move from 'trade and culture' towards 'trade versus culture'. It argues that both the domain of trade and that of culture have suffered from the aspirations to draw clearer lines between the WTO and other trade-related issues, charging the conflict to an extent that leaves few opportunities for practical solutions, which in an advanced digital setting would have been feasible.

Labour Migration, Trade and Investment: From Fragmentation to Coherence

Trade, investment and migration are strongly intertwined, being three key factors in international production. Yet, law and regulation of the three has remained highly fragmented. Trade is regulated by the WTO on the multilateral level, and through preferential trade agreements on the regional and bilateral levels – it is fragmented and complex in its own right. Investment, on the other hand, is mainly regulated through bilateral investment treaties with no strong links to the regulation of trade or migration. And, finally, migration is regulated by a web of different international, regional and bilateral agreements which focus on a variety of different aspects of migration ranging from humanitarian to economic. The problems of institutional fragmentation in international law are well known. There is no organizational forum for coherent strategy-making on the multilateral level covering all three areas. Normative regulations may thus contradict each other. Trade regulation may bring about liberalization of access for service providers, but eventually faces problems in recruiting the best people from abroad. Investors may withdraw investment without being held liable for disruptions to labour and to the livelihood and infrastructure of towns and communities affected by disinvestment. Finally, migration policies do not seem to have a significant impact as long as trade policies and investment policies are not working in a way that is conducive to reducing migration pressure, as trade and investment are simply more powerful on the regulatory level than migration. This chapter addresses the question as to how fragmentation of the three fields could be reme-died and greater coherence between these three areas of factor allocation in international economic relations and law could be achieved. It shows that migration regulation on the international level is lagging behind that on trade and investment. Stronger coordination and consideration of migration in trade and investment policy, and stronger international cooperation in migration, will provide the foundations for a coherent international architecture in the field.