Keeping Promises : Implementing the UNESCO Convention on Cultural Diversity into EU's Internal Policies

Irrespective of the diverse stances taken on the UNESCO Convention’s bearing in the external relations context, since its wording is fairly open-ended, it is clear to all observers that the Convention’s impact will largely depend on how it is implemented. The discussion on the domestic implementation of the Convention, both in the political and in the academic discourses, is only just emerging. The implementation model of the EU and its Member States could set an important example for the international community and for the other State Parties that ratified the UNESCO Convention, as the EU and the Member States acting individually, played a critical role in the approval of the Convention, and in the longer process of promoting cultural concerns on the international scene. Against this background, it is the objective of the present article to analyse in how far EU’s internal policies are taking account of the spirit and letter of the UNESCO Convention on Cultural Diversity, to critically assess these policies and make some recommendations for adjustment.

Enquiry into the Notion of Cultural Protectionism in the Media and its Dimensions in Cyberspace

Cultural protectionism has been an element of national and foreign policies, as an extension of state sovereignty expressed both in a defensive and offensive manner. While the generic protectionist formula in the sense of restraining trade between states through measures such as import tariffs or quotas and through privileging domestic production has somewhat disintegrated over time under the rationale for free trade and the strong practical evidence of its benefits, the particular case of cultural protectionism has persevered. As we reveal in this paper, however, it has been modified, or at least its rhetoric has changed. The enquiry into the notion of cultural protectionism or cultural diversity, as the current political jargon would have it, is but one of the paper’s objectives. Its second and certainly more ambitious goal is the search for the normative dimensions of cultural diversity policies in the global digital space, asking what adjustments are needed and how feasible the entire project of diversity regulation in this environment may be. Taking into account the specificities of cyberspace and in a forward-looking manner, we propose some adjustments to current media policy practices that could better serve the goal of a sustainably diverse cultural environment.

The Protection and Promotion of Cultural Diversity in a Digital Networked Environment : Mapping Possible Advances to Coherence

The present paper is the result of a four-year-long project examining the concept and the policies of cultural diversity and the impact of digital media upon the regulatory environment where the goal of cultural diversity is to be achieved. The focus of the project was primarily on the international level and in particular on the World Trade Organization (WTO) and the United Nations Educational Scientific and Cultural Organization (UNESCO), which also epitomise the often framed as opposing pair of trade and culture. In the broad context of the project, we sought to pinpoint the essential elements of an international trade-and-culture conducive framework that can also overcome the existing fragmentation in the field of international law and move towards more coherent solutions. In a narrower context, we sketched some possible improvements to the WTO law that can make it more suitable to the digital networked environment and to the objective of diverse media that some states aspire. . Our key messages are: (1) Neither the WTO nor UNESCO currently offers appropriate solutions to the trade and culture predicament and allows for efficient protection and promotion of cultural diversity; (2) The trade and culture discourse is overly politicised and due to the related path dependencies, a number of feasible solutions appears presently blocked; (3) The digital networked environment has profoundly changed the ways cultural content is created, distributed, accessed and consumed, and may thus offer good reasons to reassess and readjust the present models of governance; (4) Access to information appears to be the most appropriate focus of the discussions with view to protecting and promoting cultural diversity in the new digital media setting, both in local and global contexts; (5) This new focal point demands also broadening and interconnecting the policy discussions, which should go beyond the narrow scope of audiovisual media services, but cautiously account for the developments at the network and applications levels, as well as in other domains, such as most notably intellectual property rights protection; (6) There are various ways in which the WTO can be made more conducive to cultural policy considerations and these include, among others, improved and updated services classifications; enhanced legal certainty with regard to digitally transferred goods and services; incorporation of rules on subsidies for services and on competition.

European Community Communications Law : An Introduction

The present article is an abridged version of a chapter to the book EC Electronic Communications and Competition Law (London: Cameron May, 2007). It provides an introduction to the rules at the European Community level governing the electronic communications sector (previously and more traditionally referred to as telecommunications). Such an introduction encompasses essentially an enquiry into the relevant competition law rules, of which here particular attention is paid to abuse of dominant position and the essential facilities doctrine, as well as an analysis of the EC sector specific regulatory framework, which has substantially evolved since the liberalisation of the telecommunications sector back in the beginning of the 1990s. It is the objective of the article to explore to what extent both regulatory tools could deal with the specificities of communications markets, and where they may fail to do so.

Commentary of GATS Article IX : Business Practices

Commentary of Article IX of the General Agreement on Trade in Services (GATS) on business practices, including a textual analysis of the provision, as well as an examination of the pertinent WTO case law and of other related international and regional rules and practices.

International Regulation of Postal Communications

The article provides a concise overview of the rules applicable to postal communications at the international level. Particular attention is paid to the regulations of the Universal Postal Union (UPU), the General Agreement on Trade in Services (GATS) of the World Trade Organization (WTO), as well as the relationship between the two. Outlook on possible future developments accounting for the rapid technological advances and the liberalisation of markets wraps the analysis up. This is a 2010 update that takes into consideration the changes made in the UPU acts in 2008, as well as the latest developments in the WTO's Doha Round negotiations.

Postal Communications, International Regulation

The article provides a concise overview of the rules applicable to postal communications at the international level. Particular attention is paid to the regulations of the Universal Postal Union (UPU), the General Agreement on Trade in Services (GATS) of the World Trade Organization (WTO), as well as the relationship between the two. Outlook on possible future developments accounting for the rapid technological advances, in particular the Internet, and the liberalisation of markets wraps up the analysis. This is a 2013 update that takes into consideration the changes made in the UPU acts in 2012, as well as the latest developments in the WTO's Doha Round negotiations.

Rechtliche Grundlagen für die Ernährungssicherheit in der Schweiz

The Right to Food, as enshrined in international law, has found its way into national constitutions and practices. What matters from a national and international legal point of view is how this policy objective is implemented. In Switzerland, a number of policies and their instruments are relevant here, namely agricultural, supply/stockpile, trade and development policies. This paper (in German) asks whether the policy instruments are coherent and how implementation conflicts and negative spill-over effects could be minimised. It finds that the four policy objectives enshrined in the Federal Constitution are not in themselves incoherent. However, certain Swiss agricultural policy instruments, even where they are compatible with relevant rules of the World Trade Organization (WTO), do have an avoidable negative impact on the Right to Food of developing country producers, because Swiss Food Security is overwhelmingly and increasingly defined by agricultural (self-reliance) policies (“Food Sovereignty”). This implies higher domestic food prices, commercial displacement and food dumping. The conclusions suggest a number of optimisations as a contribution to the presently on-going reform process for 1983 National Economic Supply Act 1983 (NESA), such as virtual stockpiles and taxpayer-financed stockpile costs.

Swiss Policies for more Food Security

Resource-poor yet blissful Switzerland is also one of the most food-secure countries in the world: there are abundant food supplies, relatively low retail prices in terms of purchasing power parity, with few poverty traps. Domestic production covers 70% of net domestic consumption. A vast and efficient food reserve scheme insures against import disruptions. Nonetheless, the food security contribution by the four sectoral policies involved is mutually constrained: our agriculture is protected by the world’s highest tariffs. Huge subsidies, surface payments, and some production quotas substitute market signals with rent maximisation. Moreover, these inefficiencies also prevent trade and investment policies which would keep markets open, development policies which would provide African farmers with the tools to become more competitive, and supply policies which would work against speculators. The paralysing effect of Swiss agricultural policies is exacerbated by new “food security subsidies” in the name of “food sovereignty” while two pending people’s initiatives might yet increase the splendid isolation which in effect reduce Swiss farmer competitiveness and global food security. Is there a solution? Absent a successful conclusion of the Doha Round (WTO) or a Transatlantic Trade and Investment Partnership Agreement (TTIP) further market openings and a consequent “recoupling” of taxpayer support to public goods production remain highly un-likely. To the very minimum Switzerland should resume the agricultural reform process, join other countries trying to prevent predatory behaviour of its investors in developing countries, and regionalise its food reserve.

Seals and the Need for more Deference to Vienna by WTO Adjudicators

This paper asks how World Trade Organization (WTO) panels and the Appellate Body (AB) take public international law (PIL) into account when interpreting WTO rules as a part of international economic law (IEL). Splendid isolation of the latter is not new; indeed it is intended by the negotiators of the Understanding on the Settlement of Disputes (DSU). At the same time, the Vienna Convention on the Law of Treaties (VCLT) is quite clear when it provides the general rules and the supplementary means of treaty interpretation. Despite such mandatory guidance, WTO adjudicators (when given a choice and assuming they see the conflict) prefer deference to WTO law over deference to Vienna and take a dogmatic way out of interpretation quandaries. The AB and panels make abundant reference to Vienna, though less so to substantive PIL. Often times, however, they do so simply in order to buttress their findings of violations of WTO rules. Perhaps tellingly, however, none of the reports in EC – Seals contains even a single mention of VCLT, despite numerous references to international standards addressing indigenous rights and animal welfare. In the longer term, and absent a breakthrough on the negotiation front, this pattern of carefully eschewing international treaty law and using PIL just for the sake of convenience could have serious consequences for the credibility and acceptance of the multilateral trading system. Following the adage ‘negotiate or litigate’ recourse to WTO dispute settlement increases when governments are less ready to make treaty commitments commensurate with the challenges of globalisation. This is true even for ‘societal choice’ cases on the margins of classic trade disputes. We will argue here that it is precisely for cases such as these that VCLT and PIL should be used more systematically by panels and the AB. Failing that, instead of building bridges for more coherent international regulation, WTO adjudicators could burn those same bridges which the DSU interpretation margin leaves open for accomplishing their job which is to find a ‘positive solution’. Worse, judicial incoherence could return to WTO dispute settlement like a boomerang and damage the credibility and thus the level of acceptance of the multilateral trading system per se.