The Trade Versus Culture Discourse: Tracing its Evolution in Global Law

The intensified flows of goods, services, peoples and ideas across borders intrinsic to globalization have had numerous and multi-faceted effects. Those affecting culture have been perhaps the most controversial, as it is more often than not difficult to identify the spill-overs across economic and non-economic areas and across borders, as it is equally hard to qualify the effects of these spill-overs as positive or negative. The debate also tends to be politically and even emotionally charged, which has so far not proven advantageous to establishing a genuine dialogue, nor to finding solutions. This contention and the divergent interests of major players in the international community have been reflected in the institutions and rules of global law. It is the objective of this chapter to explore this institutional architecture, in particular its main (and opposing) constituent fora of the World Trade Organization (WTO) and the United Nations Educational Social and Cultural Organization (UNESCO). The chapter traces the evolution of these institutions and their interaction over time, as well as the underlying objectives, demands and strategies of the key proponents in the trade versus culture discourse, which ultimately shaped the existent law and policy. The chapter concludes with an appraisal of the present state of affairs situating the discussion into the contemporary global governance landscape.

Should There Be New Multilateral Rules for Digital Trade?

The Internet revolution and the digital environment have spurred a significant amount of innovative activity that has had spillover effects on many sectors of the economy. For a growing group of countries – both developed and developing – digital goods and services have become an important engine of economic growth and a clear priority in their future-oriented economic strategies. Neither the rapid technological developments associated with digitization, nor their increased societal significance have so far been reflected in international economic law in a comprehensive manner. The law of the World Trade Organization (WTO) in particular, has not reacted in any proactive manner. A pertinent question that arises is whether the WTO rules are still useful and able to accommodate the new digital economy or whether they have been rendered outdated and incapable of dealing with this important development? The present think-piece seeks answers to these questions and maps the key issues and challenges which the WTO faces. In appraisal of the current state of affairs, developments in venues other than the WTO, and proposals tabled by stakeholders, some recommendations for the ways forward are made.

Towards a treaty instrument on marine genetic resources

Marine genetic resources other than fish and mammals are of increasing commercial interest and importance in genetic engineering, but fail being properly addressed in the law of the sea and in international economic law. The paper analyses the implication of the United Nations Convention on the Law of the Sea, the Convention on Biodiversity, the WTO Agreement on Trade Related Aspects of Intellectual Property Rights and related instruments under the auspices of WIPO. The paper argues that the triangle of these agreements does not adequately address marine genetic resources in particular in the high seas. Neither concerns of protecting biodiversity nor of access and benefit sharing find appropriate answers commensurate to the commercial potential of marine genetic resources. The paper suggests developing an instrument inspired by, and comparable to, the mechanisms developed by the International Treaty on Plant Genetic Resources for Food and Agriculture. The instrument would grant facilitated access to marine genetic resources and offer a more detailed set of rules with respect to the sharing of benefits resulting from their use, thereby addressing the existing legal gaps in a comprehensive way.

God, the WTO – and hunger

Considering that endemic hunger is a consequence of poverty, and that food is arguably the most basic of all human needs, this book chapter shows one of the more prominent examples of rules and policy fragmentation but also one of the most blatant global governance problems. The three monotheistic religions Judaism, Christians and Islam are surprisingly unanimous about God’s prescriptions on hunger or, put theologically, on what can be said, or should be said, about the interpretations and traditions which, taken together, form the respective and differentiated traditions, identities and views of these beliefs on how to deal with poverty and hunger. A clear social ethos, in the form of global needs satisfaction, runs through both Jewish and Christian texts, and the Qur’an (Zakat). It confirms the value inversion between the world of the mighty and that of the hungry. The message is clear: because salvation is available only through the grace of God, those who have must give to those who have not. This is not charity: it is an inversion of values which can not be addressed by spending 0.7% of your GDP on ODA, and the implication of this sense of redistributive justice is that social offenders will be subject to the Last Judgement. Interestingly, these religious scriptures found their way directly into the human rights treaties adopted by the United Nations and ratified by the parliaments, as a legal base for the duty to protect, to respect and to remedy. On the other side the contradiction with international trade law is all the more flagrant, and it has a direct bearing on poverty: systematic surplus food dumping is still allowed under WTO rules, despite the declared objective ‘to establish a fair and market-oriented agricultural trading system’. A way forward would be a kind of ‘bottom up’ approach by focusing on extreme cases of food insecurity caused by food dumping, or by export restrictions where a direct effect of food insecurity in other countries can be established. Also, international financing institutions need to review their policies and lending priorities. The same goes for the bilateral investment treaties and a possible ‘public interest’ clause, at least in respect of agricultural land acquisitions in vulnerable countries. The bottom line is this: WTO rules cannot entail a right to violate other, equally binding treaty obligations when its membership as a whole claims to contribute to the Millennium Development Goals and pledges to eradicate extreme poverty and hunger.

Choosing the Path of Austerity: How Policy Coalitions Shape Welfare-policy Choices in Periods of Fiscal Consolidation

In general, fiscal adjustments are associated with significant reductions in social spending. Hence, the welfare state is not spared from austerity. Because the welfare state is still central to party competition, this is electorally risky. The paper addresses the following questions: Do left parties differ from their centrist and rightist competitors in the design of austerity measures? And does government type has an impact on the extent to which austerity policies rely on social spending cuts? By comparing 17 OECD countries between 1982 and 2009 we show that if governments embark on a path to austerity, their ideology does not have a significant effect on the magnitude of welfare state retrenchment. However, if major opposition parties and interest groups rally against social spending cuts, a broad pro-reform coalition is a crucial precondition for large fiscal consolidation programs to rely on substantial cuts to social security.

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.

The Blinder-Oaxaca decomposition for linear regression models

The counterfactual decomposition technique popularized by Blinder (1973, Journal of Human Resources, 436–455) and Oaxaca (1973, International Economic Review, 693–709) is widely used to study mean outcome differences between groups. For example, the technique is often used to analyze wage gaps by sex or race. This article summarizes the technique and addresses several complications, such as the identification of effects of categorical predictors in the detailed decomposition or the estimation of standard errors. A new command called oaxaca is introduced, and examples illustrating its usage are given.

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.

Legal Aspects of Sino-­African Tied Aid: The Art of Playing with a Legal Grey Area

Sino-African trade has seen a fifty-fold increase in the years 1999 to 2008. In some African regions, particularly in sub-Saharan Africa, China has even replaced the US as the most important trading partner today. But China holds not a single FTA on the African continent, while other major trading partners of African economies rely on an extensive framework of different trade agreements. What is, thus, the legal basis of the recent increase of Sino-African trade? Interestingly, Sino-African trade has seen a particularly strong increase in countries that have entered into tied aid agreements with China. These agreements are commonly known under the term ‘Angola-Model’ and consist of a multifaceted network of barter-trading-systems, aspects of tied aid and concessions for oil and other commodities linked with a state loan. It is likely that these agreements have an impact on the trade-flows between African countries and China. This paper discusses the legal character of this new form of economic cooperation, or modern version of tied aid. Critical legal aspects related to this form of tied aid refer to violation of the principle of most-favoured nation (MFN), illegitimate export subsidies, market access, public procurement and transparency in the international trading system. However, despite the recent outcry of the foremost Western community against the strategy of the Chinese government on the African continent, the practice of the Angola-Model based tied aid is not entirely new, and neither is it against the law. The case of tied aid is situated in a legal grey area that should be examined thoroughly in order to strengthen the international trading system and to support developing countries in their attempt to gain from tied aid arrangements.

Coupled human and natural system dynamics as key to the sustainability of Lake Victoria's ecosystem services

East Africa’s Lake Victoria provides resources and services to millions of people on the lake’s shores and abroad. In particular, the lake’s fisheries are an important source of protein, employment, and international economic connections for the whole region. Nonetheless, stock dynamics are poorly understood and currently unpredictable. Furthermore, fishery dynamics are intricately connected to other supporting services of the lake as well as to lakeshore societies and economies. Much research has been carried out piecemeal on different aspects of Lake Victoria’s system; e.g., societies, biodiversity, fisheries, and eutrophication. However, to disentangle drivers and dynamics of change in this complex system, we need to put these pieces together and analyze the system as a whole. We did so by first building a qualitative model of the lake’s social-ecological system. We then investigated the model system through a qualitative loop analysis, and finally examined effects of changes on the system state and structure. The model and its contextual analysis allowed us to investigate system-wide chain reactions resulting from disturbances. Importantly, we built a tool that can be used to analyze the cascading effects of management options and establish the requirements for their success. We found that high connectedness of the system at the exploitation level, through fisheries having multiple target stocks, can increase the stocks’ vulnerability to exploitation but reduce society’s vulnerability to variability in individual stocks. We describe how there are multiple pathways to any change in the system, which makes it difficult to identify the root cause of changes but also broadens the management toolkit. Also, we illustrate how nutrient enrichment is not a self-regulating process, and that explicit management is necessary to halt or reverse eutrophication. This model is simple and usable to assess system-wide effects of management policies, and can serve as a paving stone for future quantitative analyses of system dynamics at local scales.

Communication services

This is a concise encyclopedia entry that discusses the applicable law of the World Trade Organization (WTO) with regard to telecommunications, audiovisual, postal and courier services, which are framed in terms of existing WTO classification under the common heading of 'Communication Services'. The chapter analyzes the pertinent rules of the General Agreement on Trade in Services (GATS), the present state of commitments, the problems faced in light of the recent technological advances that affect, albeit differently, all these sectors. It includes insights from the case-law and a brief overall appraisal of the prospects for change.

La integración económica argentino-chilena : repercusiones en el sector agrario

Se realizó un análisis comparativo de los sectores agrarios argentino y chileno, comparando la potencialidad y uso de los recursos naturales en los distintos tipos de explotaciones agropecuarias. Se lo completó con encuestas a productores agrarios e informantes clave de ambos países para conocer la situación tecnológica y económica actual. Se determinaron ventajas comparativas en los distintos cultivos y explotaciones agropecuarias. La principal fortaleza argentina reside en la mayor disponibilidad y, en algunos casos, calidad de los recursos naturales. Esta ventaja estructural constituye una amenaza principalmente para el sector cerealícola y ganadero chileno. Los factores institucionales exógenos a la empresa constituyen la principal debilidad argentina y se reflejan en el mayor costo de producción en cultivos intensivos, como los vitícolas y frutícolas. Las encuestas a productores argentinos demuestran una actitud pesimista, poco dispuesta a inversiones, agobiada por la presión fiscal y más aún por normativas legales incoherentes con la realidad económica. La inseguridad jurídica y económica se manifiesta en un atraso tecnológico, respecto de Chile, por falta de incentivos y, en consecuencia, de inversiones en el agro. Frente a estas diferencias, la integración puede conducir a desequilibrios iniciales de difícil solución, derivados de la mayor potencialidad en recursos naturales -que favorece a la Argentina- y en sentido contrario, su actual inestabilidad económica y jurídica.