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1 Introduction
While economic globalization has spurred a more intense dialogue and interaction among nations – potentially promoting cultural diversity – it can also jeopardize the protection of cultural heritage and associated cultural practices. On the one hand, international trade law enables different states to exchange their cultural goods more easily. Since ancient times, different civilizations have benefitted from intercultural communication and trade, as evidenced by Mesopotamian art found in Egypt, the Phoenician alphabet spread across the Mediterranean Sea, and Arabic numerals and Chinese papermaking shared among diverse cultures across the globe. Contemporary trade regimes facilitate the spread of artworks and cultural items such as music, movies, books, specialty food, traditional medicines, and agricultural practices. International trade law can thus foster cultural diversity.
On the other hand, global trade in cultural products can affect local cultural practices and jeopardize the viability of smaller cultures, because foreign products may gradually replace domestic ones.2 Not only can cultural identity be eroded, but there is a risk of cultural imperialism.3 In fact, the transformation of traditional cultural practices into profitable economic activities and commodities can lead to cultural homogenization, if not cultural hegemony. Dominant cultures – which also reflect the global distribution of power – tend to dominate in the global markets.4
Moreover, WTO members states have brought cultural heritage disputes before the WTO Dispute Settlement Mechanism (DSM), where they have claimed that regulatory measures affecting their economic interests are in breach of the relevant international trade law provisions. Such disputes highlight the emergence of a clash of cultures between international economic governance and the safeguarding of cultural heritage. Panels and the AB have had to find the proper balance between trade and countervailing cultural interests. Decisions that are too liberal on trade may lead to a race to the bottom in the cultural field. Conversely, too lenient a stance on cultural policies will restrict trade in culture unduly. In fact, ‘not all protectionist measures in the name of culture are founded on solid cultural considerations.’9 Freedom of trade clearly
In many ways, this jurisprudence has served as a battlefield between the promotion of free trade and the protection of cultural diversity, and as a site of confrontation between international trade governance and cultural sovereignty.11 Indeed, a number of disputes adjudicated at the WTO have touched upon cultural heritage and cultural rights.12 However, the literature has rarely addressed what happens when trade and cultural heritage interact at the WTO; whether the WTO is well-equipped to cope with this interplay; and in which key areas cultural heritage and trade intersect.13
This chapter therefore aims to discuss select dimensions of the complex interplay between trade and cultural heritage exploring how WTO dispute settlement bodies deal with cultural heritage, specifically examining whether they consider cultural concerns when adjudicating cultural heritage-related disputes. In order to address these questions, the chapter examines several cultural heritage disputes relating to diverse areas of international trade law. Due to space limits, the chapter focuses on a selected range of case studies. It demonstrates that while a number of legal tools can foster the reconciliation of opposing interests under WTO law, much remains to be done to ensure better coherence between theory and practice.
The chapter unfolds as follows. First, it examines the theory of comparative advantage that lies at the heart of international trade law and demonstrates how it can clash with the safeguarding of cultural diversity. Second, the chapter explores the non-discrimination provision of WTO law investigating how it can intersect with state cultural policies. Third, the chapter discusses the possibility of quantitative restrictions in the cultural domain. Fourth, the chapter investigates the general exceptions provision enabling states to protect national treasures of artistic, historic, and archaeological value. Fifth, the chapter addresses
2 The Theory of Comparative Advantage
The theory of comparative advantage is at the heart of international trade law as it expresses the current economic rationale for free trade. After a brief historical overview of the origins and development of this theory, this section demonstrates that it can be incompatible with some features of international cultural heritage law. This is not to say that international trade is necessarily incompatible with cultural diversity, but that existing flexibilities within international trade law need to be interpreted and applied to the full to respect the fundamental cultural choices of the international community.
Already in the 16th century, treatises on the law of nations acknowledged that different nations had different resources, and that international trade could increase mutual advantage, thus fostering peaceful and prosperous relations among nations. For instance, in his treatise on the law of nations, Alberico Gentili (1552–1608), an Italian refugee and Regius Professor at the University of Oxford, viewed commerce as a fact of nature and an expression of human sociability.14 To him, commerce is inherent in the design of nature because nations are naturally interdependent. Nature has distributed commodities over different regions ‘in order that it may be necessary for [people] to have commerce with one another.’15 Gentili elaborated the notion of comparative advantage: ‘[h]ere the crops of grain are richest, there grapes grow best … Thus it is an advantage that men journey over the earth … This is a wonderful gift of nature.’16
Analogously, the Dutch humanist and lawyer Hugo Grotius (1583–1645) adopted a providential view of commerce.17 In his view, commerce constitutes ‘an instrument of providence’: ‘For God has not willed that nature shall
In his masterpiece, The Wealth of Nations, the Scottish philosopher Adam Smith (1723–1790) famously divulged the theory of the absolute advantage, the idea that people ‘can increase their income by developing specialised skills and trading the fruits of their labour in the marketplace.’21 If a tailor focuses on sewing, and a shoemaker focuses on making shoes, ‘each can produce more by concentrating on doing what each can do more efficiently.’ In Smith’s words, ‘It is the maxim of every prudent master of a family, never to attempt to make at home what it will cost him more to make than to buy. The tailor does not attempt to make his own shoes, but buys them of the shoemaker. The shoemaker does not attempt to make his own clothes, but employs a tailor.’ Smith then translated this economic insight from the domestic level to the international one. ‘What is prudence in the conduct of every private family can scarce be folly in that of a great kingdom. If a foreign country can supply us with a commodity cheaper than we ourselves can make it, better to buy it of them with some part of the produce of our own industry, employed in a way in which we have some advantage.’22
The British political economist David Ricardo (1772–1823) went a step further by elaborating the theory of comparative advantage.23 In his 1817 Principles of Political Economy,24 he asked: if a country is more efficient than another in every productive activity, would both countries benefit from trade? The theory of absolute advantage had no answer to this question. To address this question, Ricardo imagined two countries, England and Portugal, producing two
The concept of comparative advantage became a key feature of international political economy with the publication of Principles of Political Economy by the British philosopher and political economist John Stuart Mill (1806–1873) in 1848.27 The marvelous intelligibility of his work and the exact and ordered sequence of his reasoning have contributed to the success of the doctrine.
Economic theory in the 20th century has mostly confirmed the theory of comparative advantage as counterintuitive but compelling. The theory of comparative advantage can promote mutual economic interdependence and the intensification of cross-border contacts, thus fostering mutual understanding and peaceful and prosperous relations among nations. This theory is concerned with ‘increasing global economic welfare’ and optimizing the allocation of the world’s resources.28 It can ensure that citizens have a greater choice of goods at better prices.29
Although the doctrine of comparative advantage is clear in economic theory, economists, historians, and lawyers have highlighted some of its limits in practice. In his masterpiece, Mill investigated the distribution of the gains of international trade based on comparative advantage. He posited that nations with the most elastic demands for other countries’ goods would benefit more from international commerce. Mill’s solution to the perplexing question of
From an economic perspective, the theory of comparative advantage does not mention how the benefits of economic welfare should be shared.30 On the one hand, by prioritizing global welfare, the theory of comparative advantage can neglect domestic interests and values. On the other hand, by prioritizing single buyers, it can affect the most vulnerable sectors of societies.31 In fact, the satisfaction of the immediate private interests may not lead to the highest common good.32 While competition can benefit global welfare, it can also prevent the development of new industries, determine the decline of whole national industry sectors, and undermine state resilience in adverse times.33 While Mill cautioned against the long-term negative impact of protectionism, he also highlighted the potential benefits of governmental intervention: when the market fails to solve certain social issues, government activity is justified as long as it benefits society.34 Arguably, the comparative advantage theory may be too simple to be realistic.35
From a historical perspective, by claiming the freedom of the sea and freedom of commerce, Grotius provided an ideological justification for Dutch interloping in the colonial empires of Spain and Portugal.36 Other theorists may have developed their theory of international trade with the interests of the British Empire in mind.37 For instance, Ricardo was a member of the British Parliament, John Stuart Mill worked for the East India Company for three
In the past, colonialism exploited the human, natural, and economic resources of colonies to the benefit of the colonizing nations.39 It promoted the overspecialization of colonies in the monocultural production of agricultural products and the extraction of raw materials.40 Before the advent of foreign domination, farmers grew a diverse range of food crops, thus diversifying risk and ensuring their subsistence and resilience.41 Under colonial rule, colonies were coerced into growing a limited range of export commodities for which they received limited, if any, consideration. Yet, the monocultural system harmed the soil after repeated use and left the countries vulnerable to plant diseases. This resulted in serious food shortages, failure to develop value-adding industries, reduced resilience, and consequently, increased dependence on external goods in the colonies. Paradoxically, the colonies had to begin importing food as large plantations drove out the small landowners. Closely connected to agricultural homogenization, cultural homogenization emerged as Western cultural values were imposed on the colonized. In turn, the exploitation of the colonies enabled the continuous expansion of capitalist production in the metropolitan countries.42
Therefore, the historical origins of the idea of comparative advantage raise some questions about its viability, as this theory presupposes a sort of political and legal unity, which does not correspond to an international community made of culturally diverse, independent, and sovereign states at different stages of development.43 When the Indian lawyer and politician Mahatma Gandhi (1869–1948) shed Western clothing for traditional Indian khadi, a type of fabric made from locally grown cotton, it was not just a matter of personal
From a legal perspective, the theory of comparative advantage does not adequately deal with the challenge of cultural diversity. It portrays human beings as consistently rational, self-interested, economic actors (homo economicus) ‘who desir[e] to possess wealth, and who [are] capable of judging the comparative efficacy of means for obtaining that end.’45 Such theory fails to grasp the eternal essence of what is human.46 In fact, the pursuit of self-interest is not the only, or even the principal, driver of human behavior. Rather, spiritual, social, and cultural factors also drive human activity.47 The homo economicus model ignores the inner conflicts that real-world individuals may experience between personal goals and societal values. Interactions between people do not always have to be categorized as economic, as between buyers and sellers; in fact, people may also interact for various political, social, and cultural reasons.
There is a real danger that international economic policies based on the theory of comparative advantage unnecessarily impact upon cultural choices. In fact, some cultural policies can be seen as protectionist, when examined solely from an economic perspective. Commercial diversification can sometimes be a tool used to help people safeguard their cultural identity. In some cases, states may prefer safeguarding their cultural values, irrespective of economic considerations. In this vein, several states have gradually abandoned agricultural models based on monoculture to cultivate their cultural and biological diversity, achieve food security, and reduce environmental risks associated
Already in the 16th century, Alberico Gentili affirmed the state’s right to regulate trade and investments for security reasons under the law of nations.49 If free trade is a fair interest (ius commerciorum aequum est), public safety or state security (tuitio salutis) is a paramount interest.50 In fact, Gentili acknowledged that in some cases, trade can clash with the public interest, and that traders cannot ‘set themselves as authorities on justice.’51 As Gentili put it, ‘let trade … give way to sovereignty, man to nature, money to life.’52 In fact, ‘it is contrary to nature and contrary to the law of nations for private individuals to seek their own advantage at the expense of others.’53 Therefore, in the case of conflict, priority must be given to the fundamental needs of the state (cedat regno mercatura).54 States can forbid the importation of harmful goods or commodities that are contrary to the country’s religion or public morals.55 For Gentili, ‘strangers have no right to argue about these matters, since they have no license to alter the customs and institutions of foreign peoples.’56 Gentili highlighted that ‘it is lawful to diminish the advantages of private individuals, provided some great gain is won for human society.’57 For Gentili, conflicts of norms should be settled by giving precedence to norms protecting the common good.
In conclusion, the theory of comparative advantage that underpins freedom of trade has the potential to make a significant contribution to economic growth and poverty reduction. However, not all countries and all sections of the population will benefit from international trade. International trade and economic openness are necessary but insufficient for sustainable development. International trade law thus incorporates mechanisms to ensure some flexibility, such as general exceptions. Rather than being seen as anomalies, these exceptions indicate areas where economic considerations
3 Non-Discrimination
Non-discrimination is central to international trade law. The principle prohibits discrimination based on the origin of products and the nationality of persons. It aims at ‘preventing and correcting state failures in granting privileges and undue protection to domestic products and nationals’ as well as ensuring equality of opportunity, that is, ‘the potential to operate successfully on markets on equal terms and unimpaired by unfair restrictions.’58
Non-discrimination essentially consists of Most Favored Nation Treatment and National Treatment. The MFN treatment ensures that trading opportunities are equal to those accorded to the most-favored nation; in other words, it is a way to ensure that trading opportunities are equal for all states.59 National treatment requires treating products of other member states as one’s own. National treatment applies to imported goods: once they enter the market, they should be treated the same as domestic goods.60
Central to the non-discrimination provision is the equality requirement that like products should be treated alike. Therefore, international trade law prohibits direct discrimination. However, in some circumstances, consistent treatment is not sufficient to guarantee equality. Accordingly, international trade law prohibits both discriminatory treatment and discriminatory outcomes. When considering discrimination claims, international trade courts generally follow a three-step test. First, they investigate whether there is a
3.1 Direct and Indirect Discrimination
The prohibition of discrimination covers both direct and indirect discrimination. Direct or de jure discrimination refers to measures that openly discriminate against goods originating in a specific country. It can be relatively easy to identify. The Italian tractors case provides a classic example of explicit discrimination, where a consumption subsidy was paid only on the purchase of Italian farm tractors.61
Indirect or de facto discrimination refers to measures not explicitly referring to origin but in fact privileging domestic goods or goods originating from certain countries only. It includes measures that look origin-neutral but have the effect of imposing an unjustifiable disadvantage on foreign products. Since discrimination often occurs covertly, indirect discrimination is not always easy to identify. Traditional ways of ascertaining less favorable treatment focus on economic criteria. For instance, under the diagonal test, one compares the treatment accorded to the foreign goods with that enjoyed by the domestic goods and asks whether any imports receive less favorable treatment than any like domestic products.62
In Japan—Alcoholic Beverages,63 the panel found that an origin-neutral tax amounted to a violation of national treatment. Tax rates differed depending on the type of alcoholic beverage. The same rates were applied to both imported and Japanese beverages. However, the majority of domestic products fell into categories with low taxes, while whiskeys and brandies imported from the former European Economic Community (EEC) were taxed more than domestic products.64 Japan then adopted a new tax system, but again the panel held that
In the adjudication of these beverage–related cases, no consideration was paid to the cultural differences that may characterize different markets. Rather, adjudicators identified discrimination on the basis of rational choice, efficiency, and economic rationale. Yet, as Mavroidis put it, ‘likeness can never be presumed, since different consumers in different markets may react in different ways to the same pair of goods.’68 In fact, certain goods inevitably express cultural value. For instance, in 2013, UNESCO formally recognized Japanese cuisine (washoku) as an item of intangible cultural heritage as it plays an important role in the daily fabric of Japanese culture and social life.69 Eating locally and enjoying a traditional diet is part and parcel of food education (shokuiku), included in school curricula since the 1990s, which highlights the cultural linkage between agriculture, the environment, and society.70
In the US—Malt Beverages case, the panel attempted to introduce a new definition of likeness, granting states some leeway to adopt policies on the basis of alcohol content. As Article III(1) of the GATT states that internal taxes and regulatory measures should not be used ‘to afford protection to domestic production,’ the panel ruled that ascertaining likeness required addressing ‘the question whether the product distinction in question had the aim [and effect] of protecting domestic industry’.71 Nonetheless, the Appellate Body rejected
Nonetheless, this economic approach risks posing undue constraints on the regulatory autonomy of states. Rather, the existence of a legitimate public policy objective on the part of the state should be fundamental to the identification of a comparator. Equality ‘can be formulated in different ways, and deciding which concept of equality to use is … a political choice.’73 Any finding of discrimination ultimately rests on the conclusion that a particular unequal treatment is unjustified. Distinctions based on national origin, of course, are, of course, illegitimate.74 Nonetheless, other regulatory purposes could justify distinctions because they are based on morally acceptable grounds.75 For instance, under a progressive taxation system, people are taxed differently according to their income. Such a system certainly has a disparate impact on particular groups, but this does not necessarily make it unlawful.
Analogously, under international human rights law, some distinctions are generally seen as perfectly legitimate because they are based on morally acceptable grounds. For instance, in Singh Bhinder v. Canada, the complainant claimed he had been indirectly discriminated against. However, the Human Rights Committee held that there was no breach of the equality principle as the law was based on legitimate grounds. The case concerned a Sikh worker who was dismissed from his employment with the Canadian Railway because he refused to comply with regulations requiring the use of safety headgear at work. In fact, his religion required him to wear a turban. The Human Rights Committee found that the legislation disproportionately affected Sikh believers. Nonetheless, the Committee found no breach of Article 26 of the International Covenant on Civil and Political Rights (ICCPR) as the domestic law was based on legitimate grounds, namely, safety at work.76
Conversely, under international human rights law, the lack of legitimate reasons for differential treatment further confirms the finding of indirect discrimination, even in the absence of discriminatory intent. For instance, in
Some scholars contend that the aim and effect test would make the general exceptions under Article XX redundant. Nonetheless, Article XX includes a closed list of regulatory purposes and its applicability is subject to the stringent requirements of the introductory part (chapeau). As Hudec points out, ‘while such burdensome requirements may be appropriate for measures that are explicitly and purposefully discriminatory, it is more difficult to explain why governments must meet such high standards to justify origin-neutral regulatory measures.’78
Two transatlantic disputes further illustrate the clash between free trade and cultural concerns in the jurisprudence relating to non-discrimination. In the EC—Hormones dispute, the WTO’s Appellate Body determined that the EC violated its WTO obligations when it banned the importation of meat and meat products derived from cattle that had received certain growth hormones.79 In particular, the European ban on meat treated with growth hormones indirectly discriminated against US meat. In fact, the percentage of cattle treated with such hormones ‘was significantly lower in the [then] European Communities than in the United States.’80
Analogously, the dispute over genetically modified organisms (GMO) centered on the alleged likeness between genetically modified organisms and other organisms. The United States brought a case against the EU, alleging that the EU had imposed a de facto ban on GMO imports.81 The United States claimed that this moratorium unfairly restricted imports of agricultural and food products from the United States and violated the WTO’s Agreement on the Application of Sanitary and Phytosanitary (SPS) Measures.82 The SPS
The number of beverage-related cases and the transatlantic trade disputes over the use of growth hormone in beef production and the commercialization of genetically modified organisms show a collision between the conceptualization of food as a commodity and the cultural and social meaning of food. While WTO law requires countries to fight their case on the basis of economic and scientific criteria, for a fair resolution of such disputes cultural concerns must also be taken into account.85 In fact, food regulation is an area of governance in which the clash between free trade and cultural attitudes is particularly evident.
3.2 The Likeness Test
As non-discrimination requires that like products be treated alike, ascertaining whether given goods are like is crucial for determining the state’s duty to grant equal treatment. Like products are ‘products that share a number of identical or similar characteristics’.86 While the concept of likeness may seem obvious in theory, it can be difficult to detect in practice. For instance, in EC—Asbestos, concerning a French ban on fibers containing asbestos, the panel found
The relevant jurisprudence has identified four factors of likeness: (1) tariff classification; (2) product properties; (3) end-use; and (4) consumers’ tastes and habits.91 As this is not a treaty-based or closed list, other factors, such as price, may be considered. Certain evidence may be examined under more than one criterion, and there is no hierarchy among the criteria. Tariff classification prepared by an international body is usually considered in the determination of likeness. In this regard, scholars have proposed considering UNESCO conventions as relevant in the process of determining likeness provided that such instruments have a strong ratification rate (as most of such instruments in fact have).92 Consumer tastes and habits are also particularly relevant to cultural products, as consumers ‘perceive local stories and local pictures as different from international audio-visual production.’93
In assessing likeness, economic criteria have often prevailed, regarding competitive relationships as necessary and sufficient for likeness.94 In fact, the
An important question concerning cultural measures is whether products may be treated differently because of how they have been produced, even if the production method used does not leave a trace in the final product, that is, even if the physical characteristics of the final product remain identical. For instance, while the use of pesticides in agriculture may leave residues on the final products, the organic production of agricultural products does not alter the look and features of such products. Does product similarity needs to be based upon particular qualities of a product, or can it also be based on process and production methods (PPM s)?100
On the one hand, consumers may care about the way in which a good was produced. Nonetheless, questions arise as to whether states are entitled to crystallize given consumer habits to consolidate an advantage acquired by domestic producers. For instance, in a seminal case adjudicated by the then European Court of Justice, Germany was found to be in breach of the free movement of goods under Article 30 of the EEC Treaty.101 The Beer Purity Law (Reinheitsgebot) governing the manufacturing of beer provided that beer could be manufactured only from given ingredients. This law was based on a traditional production technique dating back to the 16th century which prohibited
On the other hand, because each country has its production methods, questions arise as to the legality of imposing certain production methods extraterritorially.102 Nowadays, the Technical Barriers to Trade Committee requires Member states to notify mandatory labelling requirements so that they can be scrutinized under the Technical Barriers to Trade Agreement.103
Certain disputes display a cultural character because of the way a given product is produced or consumed. Methods of producing particular goods can carry cultural implications for the communities involved in their production and added economic value for the market. For example, the traditional agricultural practice of cultivating bush vines (vite ad alberello) on the island of Pantelleria (Italy) constitutes at the same time a form of intangible cultural heritage and a production technique. Developed by the Phoenicians to produce wine on an island characterized by extreme heat and wind, the technique has characterized the production of sweet wine (passito) for millennia. Already protected by a geographical indication, one may wonder whether passito can be considered like other products merely because of its alcoholic content.104
For the time being, processes and production methods do not affect the likeness of goods under international trade law. If states differentiate the treatment of products manufactured using different processes and production methods (PPM), they are in breach of national treatment or of the most favored nation treatment. While developing countries have traditionally opposed the introduction of PPM s fearing that the adoption of such tools could limit their market access and or justify protectionist policies,105 one of the main objectives of EU trade policy has been to expand the protection of its regional specialty foods for both economic and cultural reasons.106
3.3 Legitimate Distinctions?
At present, there is no specific cultural exception exempting cultural goods from the non-discrimination standard. Therefore, to legitimately differentiate the treatment of like products, states must rely on the narrow bounds of the general exceptions clause. Under the General Agreement on Trade in Services (GATS), Members remain free to discriminate against foreign services and service providers, subject to scheduling. For services that are scheduled, the general exceptions under Article XIV of the GATS are comparable to those under Article XX of the GATT.111 Under Article XX of the GATT and XIV of the GATS, states can adopt measures to protect, inter alia, public morals, natural resources, and cultural treasures.
Canada responded first that the dispute concerned access to advertising services and should be subject to the GATS. Under GATS, Canada had not made any commitment to grant national treatment to advertising services.117 Second, Canada argued that even if the GATT did apply, split-run magazines were not like Canadian magazines, as their intellectual content made them different. As one commentator pointed out, ‘at its heart, this disagreement mirrored an underlying value difference between the United States and Canada; in the view of the United States, there was no essential difference between cultural commodities like magazines or books and other commodities like automotive
The panel found that the excise tax applied to goods and ultimately found that both GATT and GATS were applicable.120 It also accepted the United States’ view that split-run periodicals were like Canadian magazines, deeming that the Canadian measures were inconsistent with Article III:2 of the GATT. The panel incidentally dismissed the cultural arguments put forward by Canada, holding that ‘the ability of a Member to take measures to protect its cultural identity was not an issue in the present case.’121 Cultural arguments were not discussed autonomously, but were ‘encoded in the determination of what is a like, directly competitive or substitutable product’ and ‘translated … into a more technocratic argument about the common characteristics of different products’.122 The panel highlighted the following: ‘despite the Canadian claim that the purpose of the legislation is to promote publications of original Canadian content, this definition essentially relies on factors external to the Canadian market – whether the same editorial content is included in a foreign edition and whether the periodical carries different advertisements in foreign editions.’123 Finally, the panel held that the import ban was inconsistent with Article XI:1 and unjustified under Article XX(d) as it aimed to entice the placement of advertisements in Canadian periodicals as opposed to foreign periodicals.124
The Appellate Body agreed with the panel’s conclusion that ‘obligations under GATT 1994 and GATS can co-exist.’125 As the excise tax clearly applied to goods, the Appellate Body determined that it needed to comport with the national treatment requirements of Article III of the GATT.126 However, it voided the panel’s finding that split-run periodicals and domestic periodicals
Another cultural heritage-related dispute which centered on non-discrimination was the EC—Seal Products case. This case dealt with Indigenous hunting practices which are deemed essential to Indigenous peoples’ cultural rights. European citizens perceive seal hunting as cruel because of the means by which the seals are hunted. The EU therefore adopted a comprehensive regime governing seal products.128 The EU Seal Regime prohibited the importation and sale in the EU of any seal product except: (a) those derived from hunting conducted traditionally by Inuit and other Indigenous communities and which contributed to their subsistence;129 and (b) those that were by-products of a hunt regulated by national law and with the sole purpose of the sustainable management of marine resources.130 In addition, seal products for personal use could be imported but could not be placed on the market.131 The EU allowed the exception for Indigenous hunting because of the international law commitments of its member states and the United Nations Declaration on the Rights of Indigenous Peoples.132
In response to the EU Seal Regime, Canada and Norway brought claims against the EU before the WTO Dispute Settlement Body, arguing, inter alia, that the Indigenous communities condition (IC condition) violated the non-discrimination obligation under Article I:1 and III:4 of GATT 1994. According to Canada and Norway, this condition accorded seal products from Canada and Norway less favorable treatment than that accorded to like seal products of domestic origin, primarily from Sweden and Finland, as well as those of other foreign origins, in particular from Greenland.133 In fact, the majority of seals hunted in Canada and Norway would not qualify under the exceptions, ‘while most if not all of Greenlandic seal products [we]re expected to conform
In this case, the panel found that the seal products produced by Indigenous peoples and those not hunted by Indigenous peoples were like products.139 The panel acknowledged the existence of several international law instruments, including the United Nations Declaration on the Rights of Indigenous Peoples,140 and also referred to many WTO countries adopting analogous Inuit exceptions.141 Despite the reference to these instruments as factual evidence,142 the panel concluded that the design and application of the IC measure were not even-handed, because the IC exception was available de facto to Greenland.143 Therefore, the panel held that the exception provided for Indigenous communities under the EU Seal Regime accorded more favorable treatment to seal products produced by Indigenous communities than that accorded to like domestic and foreign products.144 The panel concluded that the same exception violated Articles I:1 and III:4 of GATT because an advantage granted by the EU to seal products derived from hunts traditionally conducted by the Inuit was not accorded immediately and unconditionally to like products originating in Canada.145
After establishing this prima facie breach of WTO law, the panel examined the possible justification of the EU Seal Regime under the general exceptions clause, examining the question as to whether the seal products’ regulation was justified under any of the exceptions contained in Article XX of GATT, and
The Appellate Body confirmed that the EU Seal Regime discriminated against like products under Articles I:1 (Most Favored Nation) and III:4 (National Treatment) of GATT. The AB also confirmed that the ban on seal products could be justified on moral grounds under GATT Article XX(a). However, it held that the regime did not meet the requirements of the chapeau of Article XX, criticizing the design and implementation of the IC exception for Inuit hunts.148 The AB noted that the IC exception contained no anti-circumvention clause,149 and that ‘seal products derived from … commercial hunts could potentially enter the EU market under the IC exception.’150 The AB ultimately concluded that the EU Seal Regime was not justified under Article XX(a) of GATT 1994.151 In short, both the panel and the AB found flaws in the specific implementation of the ban’s exception for Indigenous peoples. Therefore, the EU refined the seal regime to insert anti-circumvention rules and thus comply with the chapeau requirements.
In conclusion, a balance between trade liberalization and respect for state sovereignty is expressed in WTO agreements: as a supranational organization, the WTO lacks inherent rule-making powers and has no mandate to govern cultural matters. Therefore, states retain their regulatory powers in the cultural sector. While Member States must fulfill their obligations under the covered agreements, in theory, Article XX of the GATT enables them to adopt measures to protect public morals or national treasures of artistic, historic, or archaeological value.
Nonetheless, in practice, WTO adjudicators have a strong tendency to read states’ obligations broadly, while interpreting general exceptions and policy leeway in an overly restrictive manner. As an exception, Article XX has been construed too narrowly. GATT/WTO panels and the Appellate Body have confronted the issue of culture versus trade at several points, and ‘have consistently
Such jurisprudence reflects the language of rational choice and economic efficiency and has become ‘a key vehicle for transmitting … economic doctrine.’154 The dominance of this approach has constrained not just the ability to think creatively ‘in new and imaginative ways’ about the linkage between culture and trade but it has also called into question the cultural sovereignty of states.155 While the WTO system provides member states with a number of general exceptions in theory, it lacks flexibility toward cultural considerations in practice.
4 Quantitative Restrictions
Article XI of the GATT prohibits quantitative restriction to trade, by providing that ‘no prohibitions or restrictions other than [tariffs] … shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation.’156 Quantitative restrictions are more likely to distort the free flow of trade and affect competition than tariff measures. In fact they ‘impose absolute limits on imports, while tariffs do not.’157 Because of their protective effect, their prohibition is one of the fundamental principles of the GATT.
The imposition of quantitative restrictions on imports, through direct restriction on the number of foreign goods imported, enables domestic products to avoid direct competition. Quotas also enable the domestic industry to expand and stabilize employment within that industry. Quantitative restrictions on
At the same time, quantitative measures restrict access to foreign goods enjoyed by consumers in the importing country, and by driving up prices and reducing the range of choice, they reduce welfare. Import restrictions require that the quantities, varieties, and traders be determined in advance. The allocation of licenses can become unfair and opaque. The difference in international and domestic prices caused by quantitative restrictions becomes a rent that profits the license owners.
Despite the general prohibition of quantitative restrictions, Members may introduce or maintain them as exceptions in a limited number of circumstances. These include, for example, the general exceptions set out in GATT Article XX; the national security exception set out in GATT Article XXI; and exceptions described in the Agreement on Agriculture158 and other WTO agreements. For instance, under GATT Article XX, Members can maintain prohibitions or restrictions necessary to protect public morals or national treasures.
WTO Members have also imposed trade restrictions as a result of international obligations undertaken outside the WTO framework. When a Member applies a quantitative restriction as a result of other international commitments, it must also notify the WTO and specify which WTO provision, in its opinion, permits the exception.159 For example, Members that have notified measures maintained according to a multilateral environmental agreement have typically indicated Article XX of the GATT as legal justification for the measures.
Similarly, States can impose restrictions on the export of cultural heritage and archaeological goods because of their obligations under the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property.160 While the UNESCO Convention does not provide a model law for states to shape their export controls, ‘it has served as a legal basis for countries to have their export controls recognized by other countries.’161 For example, states can impede the illicit import
In the absence of an explicit textual justification for the adopted measure, it can be difficult, if not impossible, for a state to shield its quantitative restriction even if it may be motivated by social/cultural objectives. An example may clarify the issues at stake. In an early case, Japan—Measures on Imports of Leather,162 Japan had established an import licensing scheme to limit the imports of certain leather goods to protect a cultural minority, the Burakumin. Japan explained that a segment of Japanese society had suffered discrimination for centuries due to social exclusion that originated during the Japanese feudal period.163 Because their ancestors crafted leather products, Burakumin were considered outcasts against the background of prevailing Shintoist values abhorring the perceived impurity of death.164 Although this minority had already been emancipated from institutional discrimination in the 19th century, ‘this emancipation was only formal as in actual social life, these people continued to lead a destitute life under miserable conditions not too different from those in the feudal or pre-modern days.’165 Moreover, as these people were mainly employed in the leather industry,166 Japan adopted the Dowa Special Measures law to improve their conditions. Against this background, Japan explained that the measures at stake ‘constituted more than a minority problem as the phenomenon was unique and relat[ed] to subsistence and survival’.167
The GATT panel noted that Japan had not invoked any provision of GATT to justify the maintenance of the quota, and therefore concluded that the import licensing scheme constituted an import quota, which violated GATT Article XI. It also held that ‘the special historical, cultural, and socio-economic circumstances referred to by Japan could not be taken into account by it in this context since its terms of reference were to examine the matter in the light of the relevant GATT provisions and these provisions did not provide such a justification for import restrictions.’168
Trade in cultural property constitutes one of the main manifestations of the interplay between culture and trade. While trade in cultural products such as audiovisuals is certainly permissible, the illicit trade in cultural property such as protected antiquities is not. International trade law thus provides a specific exception for state measures protecting national treasures. Nonetheless, the language adopted by the GATT169 does not correspond to the terminology adopted by UNESCO Convention the on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property.170 Moreover, the Appellate Body has traditionally been reluctant to consider non-WTO law when adjudicating disputes. This section illuminates the aim, scope, and content of Article XX(f) of the GATT and the 1970 UNESCO Convention. It then examines the nexus between Article XX(f) and the 1970 UNESCO Convention in theory, and the application of the exception in practice. The section concludes with some recommendations for improving the coherence of cultural governance and international trade law in the protection of national treasures.
5.1 Aim, Scope and Content of Article XX(f)
Article XX(f) of the GATT allows WTO Members to adopt and maintain measures ‘imposed for the protection of national treasures of artistic, historic, or archaeological value’ even if the measures are trade restrictive, ‘[s]ubject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade.’171 Therefore, under specific conditions, WTO Members can prioritize the protection of national treasures over trade liberalization. Nonetheless, the restrictive requirements of the chapeau of Article XX can limit the successful application of such provision in practice.
What does ‘protection’ of national treasures mean? Article XX(f) does not explain this term, rather leaving the design and implementation of policies aimed at protecting national treasures to the Member States. Certainly, the
Article XX(f) refers to the notion of ‘national treasure’ instead of ‘cultural goods or objects’, and its terminology differs from that of international cultural heritage law.173 The adoption of such language reveals an underlying pattern of international economic law, namely its focus on the economy—the relationship between production, trade, and the supply of money. International economic law is intended to govern how Member States conduct trade rather than protecting cultural heritage as such. Moreover, some of its rules have been purposely left vague so that there could be room for compromise.174
Therefore, in drafting the exception and balancing the need to afford protection to objects of significant (cultural) value with the practicalities of international trade, the Contracting Parties to the GATT 1947, the predecessor of the GATT 1994, distinguished ‘national treasure’ from ‘cultural property’ by considering ‘national treasure’ a narrow subset of cultural property.175 In this manner, the term ‘national treasure’ became a common denominator that could be agreed upon by the greatest number of signatory states, be they art-poor but economically wealthy market countries or art-rich but economically poor source countries. The wording of the exception relied on previous
In order to identify the meaning of ‘national treasure’, it is worth examining the meaning of its components. On the one hand, the term ‘treasure’ evokes wealth such as money, jewels, precious metals, and ‘objects of extraordinary economic value, anchored to a monetary index’.178 It also recalls the idea of finding a valuable item that was once hidden or buried. For instance, in Roman law, if people found a treasure on their land, they acquired its property (thesauri inventio). International economic law does not define what constitutes a treasure. Rather, the definition is left to domestic law and thus varies from state to state, remaining a municipal law issue that can also eventually become an international trade issue.179
On the other hand, the mainstream literature emphasizes that the ‘national treasure’ designation does not refer to all cultural objects, but only to those that have an inseparable link to the culture and history of a given country.180 Nonetheless, the adjective ‘national’ is vaguer than it looks at first sight: in fact, it can refer to where the treasure is located, or to where the artwork was created, or to the nationality of the creator, or the place such artifact represents, or to which it refers. Moreover, it is uncertain whether states may only prevent
Nonetheless, the concept of ‘national treasure’ is more than the sum of its parts; in its wholeness, the expression acquires a new and different meaning. The qualifiers used for identifying an artifact as a ‘national treasure’ include such vague notions as ‘artistic, historic, and archaeological value’. Such qualifiers can be eventually interpreted as flexible guidelines by international economic courts on a case-by-case basis.
Moreover, such courts could also interpret the provision in an evolutive fashion. Evolutive or dynamic interpretation indicates that a term’s ordinary meaning can change over time. Good faith, the object and purpose of the GATT, and ‘relevant rules of international law’ may require that a term is interpreted evolutively.182 Evolutive interpretation has shaped the jurisprudence of international courts and tribunals, including international economic courts.183
In particular, in interpreting Article XX(g) of the GATT, the Appellate Body has sought guidance from other international law instruments. For instance, in the Shrimp–Turtle case, Malaysia, India, Pakistan, and Thailand challenged a measure adopted by the United States to protect sea turtles, an endangered species. The policy required fishermen to capture shrimp without ensnaring sea turtles and restricted imports based on the production process rather than the product itself. In order to justify its import restriction, the United States argued that sea turtles, endangered species, could be considered ‘exhaustible natural resources’ under GATT Article XX(g). The parties agreed that ‘natural resources’ were resources found in nature, but they disagreed on the interpretation of the term ‘exhaustible’ under GATT Article XX(g). For the claimants, exhaustible natural resources referred to finite resources, such as minerals, rather than biological or renewable resources. The AB referred to multilateral environmental agreements to define the scope of ‘exhaustible natural resources’ in light of the current meaning and rules of international law.184 Accordingly, the AB concluded that sea turtles were ‘exhaustible natural resources’ under Article XX(g) of the GATT.
5.2 The 1970 UNESCO Convention
The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transport of Ownership of Cultural Property (1970 UNESCO Convention)187 was adopted in response to the growth of the art market in the 1960s and the destruction of ancient monuments and sites to satisfy market demand.188 The 1970 UNESCO Convention aims at controlling the market of cultural artifacts, requiring its states parties to regulate the trade in cultural objects and encouraging cooperation among them to prevent the illicit trade of cultural items.189 Its export and import controls are designed to manage the international movement of cultural items.
Due to the importance attached to cultural heritage, countries that are rich in cultural artifacts bear most of the responsibility for retaining such objects within their borders, monitoring international trade, and preventing the illicit trade of cultural artifacts. Under the 1970 UNESCO Convention, countries that are parties to the same regulate the export of cultural items by instituting a legal export certification program to control the flow of cultural items and to provide an authenticated provenance for such objects.190 Market countries also have responsibilities: for instance, under the 1970 Convention, states parties prohibit the importation of cultural objects stolen from a museum or
Because the 1970 UNESCO Convention was ‘the end product of a complicated and difficult compromise’, it comprises some ambiguous language, and there is no common understanding of the Convention’s substantive scope.194 Thus, most states that are rich in cultural artifacts have focused on regulating the outbound flow of cultural objects, while market countries have only sparely regulated inbound traffic, interpreting their obligations under the 1970 UNESCO Convention narrowly. This has prevented the smooth operation of the Convention by creating regulatory asymmetries and implementation gaps.
In order to buttress their protection of cultural heritage, some countries have signed bilateral arrangements on the exportation and importation of cultural property pursuant to the 1970 UNESCO Convention. For instance, Cambodia implemented the convention by adopting municipal law governing the import and export of cultural artifacts. Adherence to the convention has enabled Cambodia to successfully seek the return of many missing cultural items.195 Pursuant to Article 9, the government requested bilateral assistance from the United States, one of the major importers of Cambodian art, to halt the looting and illicit traffic of Khmer artifacts. In 1999, the United States government imposed emergency import restrictions on Khmer sculptural and architectural elements.196 In 2003, Cambodia and the United States signed a Memorandum of Understanding Concerning the Imposition of Import Restrictions on Archaeological Material from Cambodia, which has been extended and amended several times.197 The United States has signed analogous Memoranda of Understanding with other countries rich in cultural artifacts such as China.198
For the time being, no dispute has dealt with the interpretation or application of GATT Article XX(f) in the GATT/WTO system. Arguably, for more than 70 years since the exception was penned, states have used the flexibility provided by the exception without abusing it. They have regulated their national treasures without misusing this freedom for adopting disguised protectionist measures. Therefore, the use of this exception has not caused any controversy. Moreover, there is international consensus on the need to protect cultural treasures, as demonstrated by the widespread ratification of the 1970 UNESCO Convention. Regrettably, attempts to stifle the black market in antiquities by trade controls have not prevented the illicit trade of antiques. In parallel, the literature on Article XX(f) remains limited: most scholars focus on other types of general exceptions, and the discussion has been dominated by international trade lawyers.
Despite the scarce literature and jurisprudence, further discussion on GATT Article XX(f) is useful for both practical and theoretical reasons. In practice, as Voon highlights, there is no guarantee that disputes centering on GATT Article XX(f) may not arise in the future. The fact that there is no jurisprudence on this provision does not necessarily entail that cases will not emerge in the future. For instance, the security exception embodied by GATT Article XXI has lain dormant for decades before undergoing a renaissance in the past few years.199 Similarly, jurisprudence on Article XX(f) might emerge in the future. In fact, for both cultural and security interests, ‘the spirit’ in which Members of the Organization interpret these provisions is the principal guarantee for preventing disputes.200 A WTO dispute could materialize if the business of a WTO Member that is a non-party to the 1970 UNESCO Convention sought the assistance of their home state in challenging another WTO Member’s export restriction because they wanted to export cultural property for commercial reasons.201
Moreover, analysis of Article XX(f) can help illuminate the meaning of similar if not identical provisions that have been incorporated in several regional and bilateral free trade agreements. Such incorporation opens up the possibility of further interpretation and application of the scope of Article XX(f) outside the WTO dispute settlement process.
Therefore, discussing how Article XX(f) could be interpreted and applied can contribute to the further development of international economic law, international cultural heritage law, and general international law by illuminating this area at the intersection between culture and trade. Therefore, this section briefly examines how Article XX(f) could be interpreted and applied if a case arose in practice, and examines possible ways to ensure greater coherence between international trade law and international cultural heritage law.
5.3.1 Application of the Exception
Although there is no WTO jurisprudence on the interpretation of Article XX(f) of the GATT, it is possible to infer how the exception would be interpreted and applied by relying on the decades-long interpretative practice of other types of general exceptions. This interpretive practice is articulated in three parts.
First, Article XX which governs general exceptions only applies to measures that appear to be inconsistent with another provision of the covered agreements. Measures that treat national and foreign products differently may violate the national treatment obligation under Article III of the GATT. Differentiating goods coming from one country from goods imported from other countries is prohibited under Article I of the GATT, the Most Favored Nation Treatment provision. Quantitative restrictions on imports and exports are prohibited under Article XI of the GATT.
Second, to verify whether Article XX can justify the given measure, the adjudicator must check whether the measure can be provisionally justified under the specific clauses of Article XX. Under Article XX(f), the adjudicator should verify whether the measure was ‘imposed for the protection of national treasures’. The text of Article XX(f) does not require a high level of justification: the words ‘imposed for the protection of’ seem analogous to the words ‘relating to’ the conservation of exhaustible natural resources that appear in Article XX(g) and have been interpreted by the AB as meaning ‘primarily aimed at.’203
Third, the adjudicator must apprise whether the measure also complies with the chapeau of Article XX. The WTO Appellate Body has clarified that a balance must be struck between the right of a Member to invoke an exception under Article XX and the duty of the same Member to respect the treaty rights of the other Members.205 The chapeau is aimed at preventing the abuse or misuse of the exceptions provided for in Article XX by expressing this line of equilibrium between the rights and obligations of Member States. This balance is not fixed and unchanging; rather, the line moves as the kind and shape of the measures at stake vary and as the facts making up specific cases differ.
As mentioned, despite the availability of several general exceptions in theory, Member States have rarely been successful in invoking such justifications in practice. In fact, the interpretation and application of such general exceptions have been ‘notoriously stringent’.206 Because the chapeau forbids discrimination in the application of the general exceptions, this makes it difficult to successfully invoke Article XX.
In casu, if a state adopted an export ban on given cultural artifacts deeming these to constitute a national treasure, and another state challenged such measures as a violation of GATT Article XI (which prohibits quantitative restrictions to trade), the adjudicator should follow the above-mentioned consolidated line of reasoning. After noting that a quantitative restriction is a provisional breach of GATT Article XI, the adjudicator should verify whether the measure was ‘imposed for the protection of national treasures’ under Article XX(f). With regard to the chapeau, the respondent could argue that the 1970 UNESCO Convention and any subsequent bilateral agreement justify any such discrimination. However, the Appellate Body has adopted a restrictive approach to the issue, and the mere fact that an international treaty requires
5.3.2 Ensuring Coherence
International economic law is an important part of international law.208 After early uncertainty, WTO panels and the Appellate Body have accepted that ‘WTO law does not exist in isolation from general international law.’209 As the WTO constitution and its covered agreements are treaties, which are in turn creatures of international law, they must be interpreted and applied in light of international law.210 After all, the international trade regime receives validity and legally binding force only by reference to valid and binding rules outside it. In this vein, the Dispute Settlement Understanding (DSU) clarifies that the agreements must be interpreted in accordance with ‘customary rules of interpretation of public international law.’211 Interpretation can ‘foster a greater understanding’ between international economic law and other fields of international law ‘so that concepts used in one are readily understood in the other and, where relevant, adapted and applied more generally.’212 It can also ensure the coherence between WTO law and international law.
According to customary norms of treaty interpretation, as restated in the Vienna Convention on the Law of Treaties,213 and recalled by the DSU, a treaty provision should be interpreted in accordance with its terms and context, and in light of the object and purpose of the treaty.214 The Appellate Body has interpreted the text of the covered agreements in an evolutive manner considering multilateral environmental agreements (MEA s) to detect the ordinary meaning of such text.215 For instance, in US—Shrimp, the Appellate Body relied on MEA s to interpret ‘exhaustible natural resources’ under GATT Article XX(g) as including living resources such as sea turtles even though not all WTO
Regrettably, panels have adopted a restrictive approach to the interpretation and application of the customary rule of systemic integration as expressed under Article 31(3)(c) of the VCLT.219 Under such rule of treaty interpretation, treaties should be interpreted taking into account ‘any relevant rules of international law applicable in the relations between the parties’.220 Defined as the ‘master-key to the house of international law’, the principle of systemic integration can ensure the unity of international law.221
Nonetheless, panels have prioritized the need for consistent interpretation of the WTO-covered agreements over the need to ensure the consistency of WTO law with general international law.222 In particular, they have interpreted the ‘international law rules applicable in the relations between the parties’ as those applicable in the relations between all WTO Members (inter omnes partes) rather than the disputing parties (inter se).223 For instance, a WTO panel
In EC—Large Civil Aircraft, concerning subsidies in support of large civil aircraft development, the Appellate Body held that ‘[i]n a multilateral context such as the WTO, when recourse is had to a non-WTO rule for the purposes of interpreting provisions of the WTO agreements, a delicate balance must be struck between, on the one hand, taking due account of an individual WTO Member’s international obligations and, on the other hand, ensuring a consistent and harmonious approach to the interpretation of WTO law among all WTO Members.’226 However, it ‘made no statement as to whether the term “the parties” in Article 31(3)(c) refers to all WTO Members, or rather to a subset of Members, such as the parties to the dispute.’227 In light of these interpretive uncertainties and the current political impasse, the AB is unlikely to further clarify the matter and apply the 1970 UNESCO Convention for systemic integration purposes in the near future.228
Nonetheless, the narrow approach to 31(3)(c) of the VCLT has been rejected both by the Study Group on Fragmentation of the International Law Commission and by the International Court of Justice in the Oil Platforms case.229 International cultural heritage law is now a well-developed field of international law that forms part of the international legal order and must be considered when interpreting and applying WTO law.
Of course, when taking into account other international law, due to jurisdictional limits, the WTO courts will not determine whether a particular WTO Member has violated its obligations under a non-WTO legal instrument.230 In the Mexico—Soft Drinks case, concerning certain tax measures imposed
Article 31(3)(c) also includes the principle of evolutionary interpretation.235 According to this principle, ‘[a]n international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.’236 Adopting an evolutive interpretation of Article XX(f), some scholars have argued that national treasures might include items of intangible cultural heritage or cultural expression, as reflected in the 2003 and 2005 UNESCO Conventions respectively.237 In this manner, even books, music, and cultural expressions such as food and beverages might fall under the scope of Article XX(f).238
For the time being, however, Article XX(f) does not seem to address the interplay between trade liberalization and the protection of cultural industries,
A hypothetical example can clarify the current state of the art. Brunello di Montalcino is one of Italy’s best-known and most expensive wines that has been produced in the vineyards surrounding the town of Montalcino, in Tuscany since the 14th century and has become particularly popular in America. Evidently, Brunello does not belong to the definition of national treasures under GATT Article XX(f). If however, bottles of such wine were to be found in a shipwreck that had been underwater for more than 100 years, then such bottles could be seen as underwater cultural heritage and items of historic value.242 Going back to the countryside of Montalcino, the remains of Brunella, a four-million-year-old fossil whale found there in a vineyard, constitute a national treasure and cannot be traded under domestic law, because of its archaeological value.243
In conclusion, international trade law recognizes states’ right to pursue legitimate cultural goals, and the national treasures exception in Article XX(f) of the GATT 1994 constitutes a gateway to import cultural concerns into the citadel of international trade law. This exception has never been invoked before the WTO DSM. WTO Members generally accept restrictions on the trade of cultural property that are designed to protect national treasures. Nonetheless, as noted by Voon, ‘greater attention may need to be paid to ensuring coherence
In this regard, institutional cooperation between the WTO and UNESCO might additionally enhance coherence between international trade law and international cultural heritage law.245 For instance, the World Health Organization (WHO) has an observer status at the WTO’s Technical Barriers to Trade and Sanitary and Phytosanitary Committees, the Council for Trade in Services, and the Council for Trade-related Aspects of Intellectual Property Rights.246 This has enabled the WHO to follow discussions on matters of interest such as the tobacco trade and support tobacco control measures based on the Framework Convention on Tobacco Control.247 Analogously, UNESCO could obtain observer status in relevant WTO Committees.
WTO Member States might adopt a Declaration for clarifying the contemporary scope of national treasures, ideally aligning the terminology and fine-tuning the aims and objectives of international trade law and international cultural heritage law. An even more ambitious approach could be the adoption of an amendment to the text of Article XX(f) to expand its scope in line with contemporary developments in international cultural heritage law. In the case of access to medicines, the WTO Members modified the rights and obligations in the TRIPS Agreement in order to facilitate access to life-saving medicines.248 As the protection of cultural heritage is a public good that can benefit countries across the globe, any such amendment could be widely endorsed.
6 Public Morals
The term ‘exception’ is used in international law to indicate a wide range of techniques that provide different legal treatment to certain situations
GATT Article XX and GATS Article XIV are defenses, to be invoked only when a measure is inconsistent with any provision of the GATT or GATS respectively. Their operation presupposes a prior finding of inconsistency with a primary norm of the GATT.253 As a panel aptly stated, ‘an analysis of whether a measure infringes an obligation necessarily precedes, and is distinct from, the further and separate assessment of whether such measure is otherwise justified.’254 To pass muster under a general exception, be it Article XX of the GATT or Article XIV of the GATS, a state measure must come under one of the listed grounds of justification as well as satisfy the requirements of the chapeau.255
Article XX of GATT is divided into two parts: (a) the chapeau and (b) ten specific grounds for justifications. Although a regulatory measure could be provisionally justified under one of the specific justifications, the chapeau sets rigid conditions for the Members’ right to regulate. Such conditions are
6.1 Defining Public Morals
One of the general exceptions listed under Article XX of the GATT and Article XIV of the GATS concerns public morals which corresponds to the French concept of bonnes moeurs. This exception is based on long-established international practice, as recorded in a large number of commercial treaties. There is no definition of public morals in either GATT or GATS: rather, public morals differ from country to country, and ‘what is morally acceptable in one country is not necessarily so in another.’259 In fact, the concept of morality (bonos mores) naturally depends to a certain degree on the particular culture of a country or region. Adopting a broad conceptualization of public morals, this notion includes public order and cultural concerns and can considerably affect the balance the trade regime strikes between trade and cultural values.260 Therefore, the public morals exception is potentially important for the relations between the trade regime and cultural governance. According to Article XX, nothing in GATT should be construed to prevent measures ‘necessary to protect public morals’ provided that such measures are not applied in a manner ‘which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade.’261
WTO courts have defined public morals as ‘standards of right and wrong conduct maintained by or on behalf of a community or nation’ and akin to
WTO Members are ‘afforded a certain degree of discretion in defining the scope of public morals with respect to various values prevailing in their societies at a given time.’265 In fact, ‘the concept of public morals can vary in time and space, depending upon a range of factors, including prevailing social, cultural, ethical, and religious values.’266 The travaux preparatoires for Article XX(a) reveal little about what morality is covered. At the time it was adopted, state controls existed on opium, pornography, subversive literature, alcoholic beverages, and firearms. For instance, Norway clarified that its restriction on alcoholic beverages was due to temperance and public morals. Nowadays, the decision of WTO courts to accept animal welfare as a public morals concern is a welcome move, as such a comprehensive approach quintessentially reflects the evolution of international trade law in accordance with ‘the wide diversity of cultural traditions, moral positions, and ethical views among the WTO Members.’267 For some, public morals include the full range of human rights norms and principles, while others warn that if virtually everything is characterized as public morals, disguised protectionist measures will be allowed under a sort of moral imperialism.268 Therefore, they suggest that divisive political issues should be agreed upon through negotiations.
Nonetheless, to justify a measure on public morals grounds, WTO courts investigate whether (1) the measure designed to protect public morals is capable of protecting it; (2) whether this measure is necessary to protect such public morals; and (3) whether the measure complies with the chapeau of Article XX.271 WTO courts scrutinize the evidence to detect the existence of cultural concerns within a given society and the ‘connection between such concerns … and … public morals.’272 WTO courts have interpreted the term ‘necessary’ as meaning that a measure is justified only if no alternative measure is reasonably available that is consistent or less inconsistent with GATT.273
6.2 Case Studies
For more than fifty years since the exception was penned,274 no country challenged measures adopted by other member states to protect public morals until 2004.275 In the past two decades, however, a growing number of disputes have involved the public morals exception, and this clause has been at the heart of at least three cultural heritage-related disputes: the EC—Seal Products case;276
As Europeans perceive the hunting of seals to be morally objectionable because of how the seals are hunted, the EU adopted a comprehensive regime governing seal products.279 The EU Seal Regime prohibits the importation and sale in the EU of any seal product except: (a) those derived from hunting conducted traditionally by Inuit and other Indigenous communities and which contribute to their subsistence;280 and (b) those that are by-products of a hunt regulated by national law and with the sole purpose of sustainable management of marine resources.281 In addition, seal products for personal use may be imported but may not be commercialized.282
The regulation included the exception for Indigenous hunting because of the international law commitments of its member states. The preamble of the EU Regulation on Trade in Seal Products noted that the hunting of seals ‘is an integral part of the culture and identity of the members of the Inuit society, and as such is recognized by the United Nations Declaration on the Rights of Indigenous Peoples. Therefore, placing seal products on the market which result from hunts traditionally conducted by Inuit and other Indigenous communities and which contribute to their subsistence should be allowed.’283 For the Inuit, a group of culturally similar Indigenous peoples inhabiting the Arctic regions in Greenland, Canada, and Alaska, seal hunting is an integral part of their cultural identity and way of life, and contributes to their subsistence. Not only do seals constitute the most important component of Inuit diet, but Inuit income from sealing represents between one-fourth and one-third of their total annual income.284
In response to the EU ban, Canada and Norway brought claims against the EU before the WTO Dispute Settlement Body, contending that the EU Seal Regime was inconsistent with the European Union’s obligations under the GATT287 and the TBT Agreement.288 Specifically, Canada and Norway argued that the IC condition violated the non-discrimination obligation under Articles I:1 and III:4 of the GATT 1994 and did not contribute to the advancement of the EU Seal Regime’s animal welfare objective.289 For Canada, ‘the cultural heritage or ethnicity of the hunters [wa]s not a legitimate regulatory distinction because it [was] unrelated to the central objective of the EU Seal regime of responding to concerns about animal welfare.’290 According to Canada and Norway, such condition accorded seal products from Canada and Norway less favourable treatment than that accorded to like seal products of domestic origin, mainly from Sweden and Finland, as well as those of other foreign origin, in particular from Greenland.291 In fact, the majority of seals hunted in Canada and Norway would not qualify under the exception, while most, if not all, Greenlandic seal products would satisfy the requirements under the IC exception.292
Canada pointed out that seal harvesting provided thousands of jobs in Canada’s remote coastal communities, where few economic opportunities existed and it had been a significant aspect of life for centuries. According to Canada, ‘the practice of sealing is deeply rooted in the culture and tradition of the communities where the hunt takes place.’297 Moreover, Canada maintained that the EU’s exemption for trade in traditional Inuit seal products would prove to be ineffective, particularly in the face of the collapse of the larger market, and the Inuit would suffer the effects.298 The trade ban would restrict virtually all trade in seal products within the EU. According to Canada, the solution to this would be the restoration of full market access.299 In parallel, Norway claimed that since only certain countries have Indigenous peoples, the measure would have an unequal impact and therefore it would not treat all WTO Member states equally.300
The key question of the dispute was whether the seal products made by Indigenous peoples and those produced by non-Indigenous peoples were like products.301 If so, as the EU ban treated the two products differently, there would be discrimination, which was prohibited under GATT Article III. In the assessment of likeness, a key question was whether consumer preferences
The panel found that the seal products produced by Indigenous peoples and those made by other actors were like products.305 The panel acknowledged the existence of several international law instruments, including the United Nations Declaration on the Rights of Indigenous Peoples and ILO Convention No. 169 focusing on the protection of Indigenous cultural heritage.306 It also recognized that seal hunting by Indigenous communities is ‘part of their culture and tradition.’307 The panel then mentioned that many WTO members have adopted analogous Inuit exceptions.308 Although the panel considered these sources as ‘factual evidence’,309 it concluded that the design and application of the exception was uneven because the exception was in fact available to Greenland.310
Therefore, the panel held, inter alia, that the exception provided for Indigenous communities under the EU Seal Regime accorded more favorable
Finally, the panel examined the question of whether the seal products regulation was justified under any of the exceptions under Article XX of the GATT 1994, and in particular under Article XX(a) on public morals. The panel noted that ‘animal welfare is an issue of ethical or moral nature in the European Union.’313 Therefore, the panel found that the EU Seal Regime was necessary to protect public morals.314 Yet, it determined that the EU Seal Regime exceptions somewhat reduced the public morals objective of the regulation by pursuing different legitimate objectives. Thus, the regime had a discriminatory impact that could not be justified under the chapeau of Article XX(a) of the GATT 1994.315
Immediately after the release of the reports, Canada, Norway, and the EU each appealed certain legal interpretations developed in the panel reports. The Appellate Body confirmed that the EU Seal Regime de facto discriminated against like products under Articles I:1 (Most Favored Nation) and III:4 (National Treatment) of the GATT 1994. In particular, the EU Seal Regime was inconsistent with Article I:1 because it did not ‘immediately and unconditionally’ extend the same market access advantage to Canadian and Norwegian seal products that it accorded to seal products originating from Greenland.
The AB also upheld the panel’s finding that the EU Seal Regime was ‘necessary to protect public morals’ thus confirming that the ban on seal products could be justified on moral grounds under GATT Article XX(a). However, it held that the regime did not meet the requirements of the chapeau of Article XX of the GATT 1994, criticizing the way the exception for Inuit hunts has been designed and implemented.316 The AB noted that the IC exception contained no anti-circumvention clause and pinpointed that ‘seal products derived from … commercial hunts could potentially enter the EU market under the IC exception.’317 The AB concluded that the EU Seal Regime was not justified
Both the Appellate Body and the panel were very careful in noting that the EU was pursuing a legitimate objective; they only censored how the EU was pursuing the selected goal. This case is significant as it shows that states can adopt measures to protect public morals. At the same time, they must ensure that the adopted measures do not discriminate across countries. Ultimately, the flaws found by the panel and the AB were not with the ban itself, but with the specific implementation of the ban’s exception for Indigenous peoples. Nonetheless, as countries pursue multiple legitimate public policy objectives all the time, it is increasingly complex to shield state measures.
The public morals exception also came into play with regard to cultural goods in China—Publications and Audiovisual Entertainment Products. In this case, the United States alleged that various Chinese restrictions on the importation and distribution of United States films, sound recordings, and publications violated provisions of GATT, GATS, and the Accession Protocol. The challenged measures included prohibiting foreign-owned enterprises from importing the relevant products, requiring publication import entities to be fully state-owned and subject to an approval system under a state plan, and granting trading rights in a discretionary manner.
China attempted to justify diverse measures in the media domain, arguing that its regulations were designed to protect public morals in China by reviewing the content of foreign cultural goods that could potentially collide with significant values in Chinese society. China thus invoked GATT Article XX(a), which embodies the public morals exception, arguing that ‘reading materials and finished audiovisual products are so-called cultural goods, i.e. goods with cultural content … with a potentially serious negative impact on public morals.’319 China explained that ‘as vectors of identity, values, and meaning, cultural goods play an essential role in the evolution and definition of elements such as societal features, values, ways of living together, ethics, and behaviours.’320
In this sense, China made express reference to the UNESCO Convention on Cultural Diversity (CCD)321 and the related Universal Declaration on Cultural
The panel held that restrictions on the distribution of publications violated Articles XVI and XVII of GATS and the national treatment requirement under GATT, and found several Chinese measures inconsistent with the Accession Protocol. The panel’s report was then upheld by the Appellate Body.324 More interestingly, China did not invoke the Declaration as a defense to its breaches of WTO law; rather, it used it to support ‘the general proposition that the importation of products of the type at issue in this case could, depending on their content have a negative impact on public morals in China.’ Therefore, the panel ‘had no difficulty in accepting this general proposition.’325 The panel also admitted the applicability of Article XX(a). However, because there was at least one other reasonably available alternative, China had not demonstrated that the relevant provisions were ‘necessary’ for protecting public morals.326 The AB upheld these findings.
The third cultural heritage-related case involving public morals was Brazil—Taxation. In this case, Brazil exempted certain domestic companies producing television equipment from paying taxes, therefore violating its national treatment obligation. In its defense, Brazil argued that while television was the foremost medium of information reception in the country, large chunks of its population did not have (uninterrupted) access. In Brazil’s words, by exempting domestic TV producers from paying taxes, it was trying to ‘bridge the digital divide’ and to ‘promote social inclusion’. According to Brazil, the discriminatory aspects of the measure were necessary to ensure the ‘continuity of supply’ of digital television.
For the panel, social inclusion can be conceived as a legitimate objective by enabling mass communication and bridging the digital gap. However, although the measure was capable of protecting public morals, it was not necessary to
6.3 Morality and Trade Revisited
Trade has contributed to the advancement of education, learning, and even the diffusion of cultural goods. Trade and cultural diversity can benefit from each other. At the same time, when trade and moral/ethical/religious values collide, WTO adjudicators need to adopt an intercivilizational approach to such cultural policy-related disputes, because such conflicts epitomize the rich cultural diversity of the world. Therefore, it would be auspicious to rethink the role of economic liberalization in relation to cultural values adopting a long-term perspective.
International trade law has traditionally prioritized trade while treating public morals as an exception. The review of the relevant jurisprudence of WTO courts reveals that despite the formal existence of general exceptions, rarely if ever do states succeed in invoking such exceptions. Moreover, while WTO courts have tended to ensure a high level of deference to state policies protecting human health and the environment, they have been less deferential on matters of public morals.328 WTO courts have recognized public health and environmental protection as vital values, and have found ways to protect those values without resorting to exceptions.329 Instead, it remains still unsettled how other vital values—like those which can fall under peremptory norms, public morals, and public order—can be similarly protected by the WTO courts.330 Cultural concerns have not been taken into account in assessing the likeness of products.
For the time being, WTO courts have checked whether ‘a certain belief is genuinely held within the regulator’s society or whether it is shared more broadly
It is high time to reconsider the interplay between culture and trade more holistically. On the one hand, ‘a new jurisprudence could focus on identifying space for flexibility within the primary rules themselves.’333 Although this interpretive process revises settled doctrinal questions, ‘trade adjudicators should consider regulatory aims (not just effects) when deciding whether a measure discriminates against like products or services.’334 Following this line of reasoning, a trade restriction clearly aimed at safeguarding legitimate cultural values ‘may perhaps not be considered discriminatory.’335 Consumers’ cultural preferences could also be taken into account to ascertain whether two products are alike or not.
For instance, for certain believers, dietary laws, which define what food is permissible (halal) under Islamic law, are not obstacles to trade, but an integral part of their diet, culture, and belief.336 To date, three disputes have related to halal measures.337 While in Indonesia—Measures Concerning the Importation of Chicken Meat and Chicken Products, Indonesia did not rely on Article XX(a)
On the other hand, the term ‘necessary’ could be interpreted in a more lenient way: rather than indicating an unavoidable or indispensable measure—which is, in itself, an impossible target, because policymakers can always conceive alternative policies to protect public morals—it could indicate that such measures are needed to safeguard public morals. The existence of less trade-restrictive measures is always possible, but this does not necessarily mean that they can achieve the same level of public morals protection intended by the state.339
In conclusion, the predominant vision of international trade law still prioritizes commerce over other concerns. Nonetheless, ‘[i]n this context of crisis and uncertainty about the future, it is worth considering what a competing imagination would look like.’340 In the words of a great philosopher from the 20th century, Simone Weil (1909–1943): ‘The spirit of justice and truth is nothing else but a certain kind of attention.’341 As argued elsewhere, attention to human dignity, cultural diversity, and diverse civilizations should become part
7 The Security Exception
Nowadays, the emerging security concerns related to the illicit trade of antiquities can add new substantive dimensions to the trade and culture debate. In fact, the illicit trade of cultural property can pose a global security threat by financing organized crime and terrorist activities. These concerns fall within the scope of GATT Article XX(a) relating to public order, Article XX(f) concerning the protection of national treasures, and Article XXI relating to national and international security.
Security concerns have traditionally justified trade restrictions, as national security takes precedence over the benefits of trade.344 Even Adam Smith recognized that national security could justify a departure from free trade among nations. According to Smith, ‘Defence is of much more importance than opulence.’345 The need to protect the state overrides all trade concerns. Therefore, a state can decide to maintain or develop a given industry for the contingency of war or its survival, even though it may not be economically viable.346 In addition, states need to avoid being too dependent on other countries in certain core industries as this allegedly ‘reduces real sovereignty and makes a nation vulnerable to economic and political forces beyond its control.’347
Until recently, GATT Article XXI had been invoked in only a few disputes and had played no significant role in the practice of the GATT 1947 or the WTO.348
However, in the past decade, there has been a surge of cases involving this exception.350 Nowadays, in a world changed by multipolarity, the end of the Cold War, global pandemics, climate change, and geopolitical instability, the relationship between trade and security has ‘fundamentally changed.’351 The linkage between trade and security is ‘far more contested’ even in countries that have traditionally supported trade liberalization.352 Self-sufficiency is increasingly being considered ‘an overriding security priority,’ at least in some sectors.353 While some cases presenting security claims have been settled or withdrawn,354 the relevance of Article XXI of the GATT is on the rise due to current fluid geopolitics.355 The fact that this provision has never been invoked with regard to the illicit traffic of cultural goods does not mean that such an exception might not be relevant in the future. Thus, this section briefly discusses its key features and then examines its possible role in the interplay between culture and trade.
GATT Article XXI enables measures to be taken to protect national security as well as international peace and security. Under Article XXI(b) Member states can take any action which they consider necessary for the protection of
Under Article XXI(c) Members can take any action in pursuance of their obligations under the United Nations Charter for the maintenance of international peace and security. Thus Members can deviate from their WTO obligations to implement economic sanctions adopted by the Security Council under Article 41 of the UN Charter. This provision mirrors and confirms Article 103 of the Charter which provides that ‘in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’357
Unlike GATT Article XX, Article XXI does not have a chapeau to prevent abuse of the exception that it contains. In fact, ‘every country must be the judge in the last resort on questions relating to its own security.’358 Because of the broad and permissive wording of Article XXI, the question has arisen as to whether this clause is self-judging or justiciable, that is, whether WTO courts can review its application. On the one hand, if interpretation were too deferential, abuses would be possible and states could engage in pretextual protectionism.359 On the other hand, if interpretation were too strict, the entire trading system would collapse as ‘no country would agree to limit its use of trade measures when it faced what it considered a threat to its national security.’360
Therefore, a certain degree of judicial review has been maintained to avoid possible abuses. In Russia—Measures concerning Traffic in Transit, the Panel reaffirmed that it is left to every Member to define what it considers to be its essential security interests and whether measures are ‘necessary’ to pursue those objectives. Nevertheless, it also stated that such a determination is
With regard to the illicit trade of cultural artifacts, since the Iraqi war in 2003, the UN Security Council has adopted several binding resolutions supplementing international cultural heritage law under Chapter VII of the UN Charter.361 Such resolutions have required all UN members to ‘take appropriate steps to facilitate the safe return to Iraqi institutions of Iraqi cultural property … illegally removed from the Iraq National Museum … and other locations in Iraq … including by establishing a prohibition on trade in, or transfer of, such items’.362 More recently, in 2015, the Security Council confirmed its ban on the trade of removed cultural objects with regard to Iraq and extended it to Syria,363 condemning the destruction of cultural heritage in both countries and noting with concern that the looting and illicit trade of cultural properties was a means to finance terrorist activities.364
The Security Council emphasized that ‘the unlawful destruction of cultural heritage, and the looting and smuggling of cultural property in the event of armed conflict, notably by terrorist groups … can fuel and exacerbate conflict and hamper post-conflict national reconciliation, thereby undermining the security, stability, governance, social, economic, and cultural development of affected states.’365 It thus requested members of the United Nations to take appropriate steps to prevent and counter the illicit trade in cultural property and other items of archaeological, cultural, scientific, and religious importance originating from a context of armed conflict. Presumably, WTO Member States whose measures comply with obligations under the UN Charter, also comply with WTO law as their measures would fall under GATT Article XXI(c).
Once an arcane provision, GATT Article XXI is now characterized by some constructive ambiguity. While member states remain free to determine their essential security interests and comply with UN Security Council resolutions, WTO courts retain some scrutiny over the same measures.
Although not all intellectual property constitutes cultural heritage, and vice versa,366 there is significant interaction between culture and global knowledge governance under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement).367 After briefly summarizing the key features of the TRIPS Agreement, this section discusses the dialectics between the protection of intellectual property and the safeguarding of various forms of cultural heritage in international trade law, focusing on copyright, geographical indications, and traditional knowledge.
The TRIPS Agreement is the most comprehensive international treaty setting global standards for knowledge governance.368 Administered by the WTO, it sets minimum standards for intellectual property (IP) protection, below which the member states cannot fall.369 Although WTO Members are free to offer greater protection than what is mandated by the TRIPS Agreement, this agreement already imposes relatively high standards of IP protection which basically correspond to those used in industrialized countries. WTO Members have the right to provide for more extensive protection that is not required by the TRIPS Agreement, as long as they follow the general principles of the most-favored nation clause and national treatment.370 Therefore, any intellectual property agreement negotiated after TRIPS by WTO Members can only create similar or higher standards for IP protection (commonly known as TRIPS-plus). Members can enforce the provisions of the TRIPS Agreement through the WTO DSM, which has compulsory jurisdiction over TRIPS-related disputes.
The TRIPS Agreement has been controversial since its inception. IP rights grant the innovator a temporary monopoly on the use of the innovation. While such monopolies intend to reward the innovators and provide incentives for further inventions, they also prevent rapid imitation, raise the cost of new
Developing countries opposed the adoption of the TRIP s Agreement fearing that the introduction of high standards of IP protection would jeopardize access to technology, and that the agreement would privilege the private economic interests of IP holders vis-à-vis important public policies furthering developmental objectives.371 Some scholars claimed that the imposition of Western IP systems on other cultures amounted to economic imperialism. They highlighted that the Western model based on individual creation and incentive conflicts in fundamental ways with Indigenous, Eastern, and Southern cultures that are characterized by communal orientation.372 In Oceania, Asia, and Africa, many civilizations have traditionally viewed ideas as part of a common heritage that benefits present and future generations.373 Many such cultures view innovations as group products designed to meet common needs. Some scholars even doubted IP’s link to trade, given its effect of restricting the market.374 Not by chance, the 1947 General Agreement on Tariffs and Trade listed intellectual property among the general exceptions to the general commitment to free trade.375
The TRIPS Agreement provides some general provisions and basic principles which have to be taken into account by both policy makers and adjudicators in respectively adopting and interpreting IP norms. Article 7, entitled ‘Objectives’, requires that the protection and enforcement of IP rights should contribute to ‘the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.’ Article 8, entitled ‘Principles’, states that ‘Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.’ In addition, paragraph 2 of the same provision adds that ‘[a]ppropriate measures, provided that they
Yet, the vague wording of these general clauses may result in the hesitation of Members to make full use of such flexibilities for such cultural purposes as research, criticism, and education. This is all the more true as every clause is accompanied by a caveat in favor of protection. Evidence shows that in practice it may be difficult for member states to invoke the flexibilities provided by the TRIPS Agreement because of the fear of other countries’ complaints before the WTO Dispute Settlement mechanism.
Recent jurisprudential trends show that WTO courts have increasingly dealt with cultural heritage-related controversies involving copyright, geographical indications, and traditional knowledge.380 These disputes demonstrate that without a sensible interpretation and/or remodelling, IP rights risk overprotecting individual economic interests.
8.1 Copyright and Culture
Copyright protects the rights of the creators of original works in the field of literature and the arts. Copyright holders have exclusive rights to copying and distribution of the work. At its core, copyright is a legal construct, because it extends the author’s right to ideas once they have been expressed in the form of books, artworks, songs, and other creative expressions.381 Copyright has multiple functions. On the one hand, it rewards creativity: by rewarding authors for the use of their works, they can make a living from creative activities. On the other hand, the distribution of cultural goods contributes to the diffusion of culture and education. In fact, any work that is left inaccessible or unexpressed limits public access to culture. In any case, copyright does not cover mere ideas that thus remain in the public domain, as they represent intellectual commons or the common knowledge of humanity. As such, mere ideas are not copyrightable.
Copyright constitutes an important part of cultural policy, and strong copyright protection is usually associated with positive effects on creativity. More generally, there is a sort of mystical thinking about copyright as serving the interest of national cultures, values, and politics. Copyright is deemed the keystone of trade in cultural products, where individuals are encouraged to create and make their creations available to the public.
Historically, even industrialized countries offered weak IP protection regimes when they were developing; they have protected copyright and patents strenuously only since they became net IP producers.385 The first known copyrights appeared in Renaissance Italy. As Venice took the lead in Italian printing, its government granted a series of privileges relating to books.386 Other city-states soon followed suit, encouraging the revelation and application of secrets—whether of native genius or foreign provenance. In Florence, the architect Filippo Brunelleschi (1377–1446) successfully engineered the dome of the Cathedral of Santa Maria del Fiore, a world heritage site, with the aid of machines that he invented for the building. The project involved the transportation of marble slabs from Carrara, where the marble was quarried, to Florence for some 100 kilometers. Brunelleschi petitioned for, and obtained, a privilege for various machinery including a boat that would bring in the blocks on the river Arno.387 In Renaissance Europe, governments granted patents to promote the transfer
After highlighting some antinomies within copyright itself, this section critically assesses how the TRIPS Agreement currently governs copyright to verify whether, and if so how, systemic antinomies may be resolved within international trade law. The TRIPS Agreement has determined an evident propertization of intangible heritage and cultural expressions. Propertization can be defined as the process of emphasizing proprietary aspects of given intangible rights or the characterization of modern knowledge governance as moving toward a property-based regime.389 This process is particularly evident with regard to copyrights.390 The TRIPS Agreement governs copyrights because they are trade-related aspects of intellectual property rights.
Yet, the author’s rights do not merely have economic dimensions; rather, they present a distinct cultural character.391 Moreover, while propertization processes seem inevitable in contemporary society, what is less evident is the impact of this trend on access to culture and the very creative process. Indeed, protecting copyrights as proprietary rights risks overemphasizing the first essential function of copyright, which is the remunerative function, while jeopardizing the second function, which is broadening access to culture. There is a risk that copyright owners are given strong rights over their work without much regard for the social costs of such protection.
In governing trade-related aspects of copyright, the TRIPS Agreement incorporates and expands the Berne Convention which already adequately protected copyright.392 Each Member state ‘is free to determine the level of originality or artistic creativity’ required for the work to be protected by copyright.393 The
However, the fact that IP disputes can now be adjudicated before the WTO DSM has strengthened the global protection of copyright to an extent unknown before. About 10% of the total WTO disputes have related to IP protection. Most of these disputes have been brought by the United States mostly challenging general IP law or regulations for systemic reasons, rather than focusing on specific matters. As issues can be discussed during the review of national legislation by the TRIPS Council, WTO Members have often reached mutually agreed solutions as a result of consultations.394 Some disputes have nonetheless reached the WTO DSM.
In US—Section 110(5) Copyright Act, the European Union complained about the so-called business exemption and home-style exemption of Section 110(5) of the US Copyright Act.395 Such exemptions permitted the radio transmission of music in public spaces without paying a royalty fee. The dispute centered on the compatibility of the exemptions with Article 13 of the TRIPS Agreement, which allows certain exceptions to copyright, subject to the condition that such limitations are confined to certain special cases, do not conflict with a normal exploitation of the work in question, and do not unreasonably prejudice the legitimate interests of the right holder. The United States argued that both exemptions met the requirements of Article 13 of the TRIPS Agreement. However, the panel found that the business exemption, which enabled companies not to pay royalties provided that their facilities were limited to a certain square footage, did not meet the requirements of Article 13. In fact, as most restaurants and bars were covered by the business exemption, this would not constitute a special case as required by Article 13 of the TRIPS Agreement. Finally, the panel found that the home-style exemption was lawful as it met the
In China—Intellectual Property Rights, the United States complained about several features of Chinese IP law. First, China denied copyright protection and enforcement to creative works of authorship, sound recordings, and performances that had not been authorized for publication or distribution within China. The WTO courts found that authors did not to enjoy minimum standards of protection under Article 5(1) of the 1971 Berne Convention, as incorporated by Articles 9.1 and 41.1 of the TRIPS Agreement. Second, in the case of IP infringement, Chinese customs authorities could adopt the following policies: (i) pirated copies could be donated to social welfare bodies for public welfare undertakings; (ii) if the holder of IP wished to buy the goods, the goods might be sold; (iii) if the first two options were not possible, then the goods might be auctioned; or (iv) when auctioning was impossible, customs might destroy the goods. For the United States, pirated goods should have been destroyed, not commercialized or auctioned. For the panel, auctioning violated Article 59 of the TRIPS, but it held that Chinese authorities did not have any obligation to destroy pirated goods. Third, the United States lamented the extent of criminal procedures and penalties for unauthorized reproduction or distribution of copyrighted works. The panel upheld the claim holding that the lack of criminal procedures and penalties for commercial-scale piracy in China was inconsistent with China’s obligations under Articles 41.1 and 61 of the TRIPS Agreement. Here again, the panel seemed to reach a fair balance between protecting copyright and culture, leaving Chinese authorities free to donate pirated copies to social welfare bodies, while condemning commercial-scale piracy.
From the cases examined in this section, it seems that WTO courts have balanced copyright and culture well. To further support the development of this balanced line of jurisprudence, Professor Gervais and Professor Geiger suggest the recognition of two equilibria within IP.396 While the intrinsic equilibrium concerns the very structure or architecture of IP norms, the
The intrinsic equilibrium appears in the conceptual matrix of certain norms of the copyright regime. For instance, TRIPS Article 13 requires Members to confine exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. The same Berne Convention, which is fully incorporated by the TRIPS Agreement, allows certain limitations and exceptions: in such cases, protected works may be used without the authorization of copyright holders or payment of compensation.397 In other words, by presenting a certain degree of flexibility, the same copyright regime does not offer an absolutist paradigm, but an intrinsic balance between private interests and public concerns.
As Geiger notes, ‘Already in the 13th century, the theologian and philosopher Thomas Aquinas held the opinion that positive rights (ius positivum) could be regarded only as fair and legitimate as long as they aimed for general well-being. Where this is no longer the case, property must be limited; otherwise it will lose legitimacy.’398 According to Professor Gervais, ‘one should not protect beyond what is necessary to achieve policy objective(s) because the risk of a substantial general welfare impact is too high.’399
This intrinsic equilibrium can be found in the international copyright regime itself, by taking into account the ultimate goal of IP as expressed in the preamble and Articles 7 and 8 of the TRIPS Agreement. If one adopts an instrumental view of intellectual property, the international IP system should function for the good of all.400 In fact, ‘property is not an end in itself. Obviously, it must be used in a way that contributes to the realisation of the higher objective of human society.’401
In parallel, the extrinsic equilibrium pertains to the search for a balance between copyright and other rights as established by different treaty regimes. As mentioned, copyright can enhance access to culture, but its overprotection can also affect cultural rights. In this regard, copyright exceptions can provide
In assessing the legitimacy and reasonableness of state measures under the TRIPS Agreement, WTO courts could refer to other international instruments including UNESCO treaties, human rights instruments, and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled.403
WTO courts have already taken other international law instruments into account when adjudicating cases of public interest. For instance, in Australia—Plain Packaging,404 a case concerning tobacco control measures adopted by Australia and allegedly infringing trademarks of tobacco companies, the panel referred to the Framework Convention on Tobacco Control and its Guidelines.405 While the Convention does not mention ‘plain packaging’, its guidelines do. Such reference was crucial to establish the legitimacy of Australia’s plain packaging under the TRIPS Agreement. As WTO courts have taken into account other international law when adjudicating public health-related disputes, there is no reason why they could not take into account other international law when adjudicating cultural heritage-related cases.
8.2 Geographical Indications
Geographical indications (GIs) constitute a further area of connection between culture, trade, and intellectual property. Progressive modernization and globalization have raised questions about the role of tradition and place in the global village. In parallel, the international protection of intellectual property has dramatically increased worldwide since the inception of the TRIPS Agreement, thus raising the question of its interplay with local cultures. At the crossroads between these phenomena, geographical indications are ‘intellectual property rights that aim to protect both farmers
Geographical indications—such as tequila, champagne, and Chianti—are collective IP rights owned by all the producers of a given region whose products comply with the specification outlined in the relevant code of practice.407 Each producer can then exercise that right independently. GI s protect producers’ investments and consumers’ expectations by certifying the unique qualities that characterize a product because of its geographical origin.
The TRIPS Agreement protects GI s as distinctive signs that identify a good as originating in a given territory; the quality, reputation, or other features of the good essentially depend on its geographical origin.408 Most national systems allow the use of a given GI to producers who are based in the designated region, follow specific manufacturing practices, and use certain ingredients. In this manner, a given geographical indication conveys a certain quality that is based on both geographical/natural and historical/cultural features.409
While the TRIPS Agreement provides for the protection of GI s in order to avoid misleading the public and to prevent unfair competition,410 it does not provide detailed regulation of the same. Under the TRIPS Agreement, GI holders can prevent any misleading indication that pretends that goods originate in a geographical area other than their true place of origin or any use that constitutes unfair competition. Enhanced protection is granted for GI s identifying wines and spirits: their holders can prevent the use of the GI even if the true origin of the product is indicated or their use is accompanied by expressions such as ‘kind’, ‘style’, and the like.411 In other words, such GI s are protected even if consumers are not misled. WTO Members can decide the particular features of their GI protection system, subject to the general WTO rules
GI s have gained ‘political salience and economic value due to major changes in the global economy’.415 On the one hand, the debate surrounding GI s relates to ‘the importance of economic competition’.416 On the other hand, this debate also pertains to the salience of cultural policy, agriculture, and sustainable development. The United States has traditionally emphasized competition and free trade, arguing that GI s constitute a trade barrier. Conversely, for the EU, it is the inadequate protection of GI s that constitutes an impediment to trade.417
Several countries have supported the protection of GI s on the international plane for three different albeit related reasons: cultural policy, agriculture, and sustainable development. First, GI s endorse three cultural aspects: (1) the culture of producing a given type of food; (2) the culture of consuming a certain food; and (3) a group’s cultural identity.418 By protecting regional food products, which have been produced using centuries-old manufacturing techniques, GI s protect the cultural values associated with the production of these goods. Proponents of GI s consider food as something more than a tradable commodity: as an artifact characterized by both visible features and intangible qualities related to the traditional manufacturing processes, consumption cultural practices, and cultural identity. In other words, ‘as a forged painting and the original one may not differ at all materially, while still being
Consider, for instance, the GI Piadina Romagnola, an unleavened flat bread made in Romagna, a region in Northern Italy. Prepared with five simple ingredients (flour, water, salt, lard or oil, and sodium bicarbonate), piadina was once the alternative to bread for the poorer. Consolidated over centuries as family food prepared by women (arzdore), in the 1950s this tradition gave rise to commercial production of piadina at small outlets along the roads that led to the Adriatic Sea. Since then piadina became renowned throughout the country, being associated with Romagna and the holiday season. The widespread presence of these kiosks characterizes the territory and has shaped consumption patterns.420
Second, proponents of GI s link them to agricultural policy. In fact, ‘GI s play a propulsive role for the local development of rural areas.’421 Recent studies have demonstrated that GI s benefit rural areas at both micro and macro levels.422 On the one hand, GI s confer an added value to producers who can sell their quality products at higher prices. Consumers are ‘willing to pay a premium price for sparkling wine from Champagne, tea from Darjeeling, and pepper from Kampot’.423 On the other hand, GI s also benefit the regions of origin because they increase employment levels and job quality and promote collateral economic activities such as ecotourism, thus contributing to rural development.424
In parallel, traditional cultivation techniques as protected by GI s may also provide cultural and social benefits to society, shaping landscapes, providing
The EU has expressly linked GI s to its Common Agricultural Policy (CAP). Introduced in 1962 and amended several times, the CAP accounts for nearly half of European expenditure and is focused on rural development. As agricultural subsidies are gradually lowered, the Commission considers GI s as a key factor of global competitiveness. Therefore, it is refocusing its strategy on the quality rather than quantity of agricultural products. As most GI s relate to agricultural products, developing countries have started to favor GI s as well. While the EU has a relatively high proportion of its population employed in agriculture (4 percent compared to 1 percent in the United States), agriculture employed a quarter of the world’s workers in 2019.429 About 400 million people work in agriculture in India and China. In parallel, 225 million people in Africa work in the sector.430 Comprehensibly, these countries have increasingly supported GI s and obtained GI s for their renowned products such as India for Darjeeling tea and China for Sangzi White tea. In parallel, the African Union has established a continental strategy for GI s.431 While European states have protected certain foodstuffs
Third, GI s have been linked to sustainable development, that is, development that meets the needs of current and future generations. By transmitting experimented practices to future generations, GI s enable the construction, safeguarding, and evolution of agricultural know-how. They express the link between human perseverance, culture, and natural resources. As noted by Calboli, ‘since the land is the essential wealth, the heart upon which the fortune of the GI producers is constructed’, GI s also incentivize farmers to adopt ‘long-term strategies’ for safeguarding the health of the land, thus ensuring the sustainability of food production. Because of the cultural, historical, and geographical features of GI s, they contribute to humanizing, spatializing, and diversifying globalization. They ‘may encourage people to live and work in their place of origin’.433 By supporting local resilience and international competitiveness, GI s enable people to flourish in the land where they are rooted.
GI s can foster cultural resilience, that is, the capability to rise above challenges and adapt quickly to new circumstances using one’s own tradition and cultural background. For instance, when a 6.2 magnitude earthquake almost destroyed the Italian town of Amatrice in 2016, restaurants across the world made donations for every plate served of Amatriciana – the pasta dish named after the town. Even if most of the town no longer exists, not only does the tradition live on, but the recent conferral of a GI can contribute to the reconstruction efforts and cultural resilience.434 In the aftermath of the 2012 earthquake shaking Northeast Italy, sales of Parmigiano Reggiano, a GI-protected cheese traditionally produced in Parma according to traditional cultural practices, helped the gradual recovery of the local communities.435 Cultural resilience empowers individuals not only to survive and recover, but also to evolve and even thrive after stressful events.
At the same time, GI s also ‘embed local space in global spaces’ enabling local communities to interact with global markets, bypassing traditional
The clash of interests and values concerning GI s is epitomized by the ongoing battle concerning the wine chateau. As EC Regulation 607/2009 prevented the importation of United States wines bearing the label chateau, a term used mainly on wines from Burgundy in eastern France, the United States asked the European Commission to approve pending applications to commercialize such products.438 However, French wine producers contended that American competitors should not be allowed to sell chateau-type wine in the EU, as their production standards differ from the French ones. In France, wine labelled chateau is entirely made from grapes grown on a terroir – a specific area of land – whose soil and micro-climate give it a unique character.439 According to French rules, the chateau label can only be applied to wine made with grapes that were cultivated on the land and processed there.440 According to French winemakers, ‘[t]his is a guarantee of quality…, a declaration to the buyer[s] that [they] [are] sharing in the heritage that gave rise to [their] wine.’441 Instead, American wines are made with a mixture of grapes purchased from different growers, as the American labelling system ‘traditionally highlights grape variety, rather than where the fruit was grown.’442 Therefore, French producers claimed that American producers should not be allowed to have chateau on the label, while American vintners complained about the detrimental trade impact of the EC Regulation.
In an early case, Japan—Customs Duties, Taxes, and Labelling Practices on Imported Wines and Alcoholic Beverages, the panel concluded that there was no evidence to suggest that Japanese manufacturers’ use of marks like chateau affected geographical indications.443 However, this case was adjudicated
The transatlantic divide over the production of GI s has fostered intense conflicts at various levels. At the multilateral level, WTO Members are debating the adoption of a multilateral register not just for wines and spirits but for all GI s, and the possibility to extend the higher level of protection provided to wines to all GI s.446 Some countries including the EU are pushing for an amendment to the TRIPS Agreement and the creation of a register with binding effects.447 Other countries, led by the United States, are calling for a non-binding system under which the WTO would simply be notified of the Members’ respective geographical indications.448 Although these negotiations were supposed to be completed in 2003, no agreement has been reached on such a system.
At the bilateral level, this divergence between the EU and the United States also played a central role in the negotiations of the Transatlantic Trade and Investment Partnership (TTIP) – the free trade agreement that was negotiated between the two actors and has now been abandoned. The TTIP negotiations reflected fundamentally different appreciations of GI s. While the EU wanted to prevent United States’ producers from commercializing and labelling products bearing their protected names, the United States favored free trade.452 The European negotiators argued that lack of protection enabled unacceptable exploitation of European intangible heritage and affected the economic interests of European producers. Conversely, the United States negotiators contended that such names had become generic, and therefore could not be monopolized by anyone. Moreover, EU-style legal protection would have constituted a barrier to trade, allowed monopolies, and ultimately increased final prices for consumers. Finally, the United States negotiators posited that the EU system would be unfair because European immigrants have long produced such goods in their host countries, thus sharing and developing the same ICH. Denying them the possibility to commercialize their products using traditional names for such items would deny their rightful association with a specific production process and long-standing cultural practice.
In conclusion, ‘attention to GI s is no longer a European thing.’453 Rather, not only have many countries implemented GI protection as demanded by the TRIPS Agreement, but they have also pursued heightened protection of their GI s at the bilateral and regional levels. In fact, the stalling of WTO
8.3 Traditional Knowledge
Traditional knowledge is ‘a source of economic and cultural value’ for Indigenous peoples and local communities.457 No single definition of traditional knowledge (TK) fully does justice to the diverse forms of knowledge that are held by Indigenous peoples and local communities. What makes knowledge ‘traditional’ is not its antiquity but its traditional link with a certain community.458 Such knowledge is traditional because it has been transmitted from generation to generation and continuously evolves in response to a changing environment.459 Indeed, TK is a vital, dynamic part of the lives of many contemporary communities. It includes ‘knowledge, innovations, and practices of Indigenous and local communities embodying traditional lifestyles’ and using local natural resources in a manner ‘relevant for the conservation and sustainable use of biological [and cultural] diversity.’460 The term encompasses agricultural, scientific, technical, ecological, and medical knowledge, as well as traditional cultural expressions in the form of music, dance, handicrafts, designs, stories, artworks, and elements of language.461
International law broadly governs TK by requiring TK holders’ free, prior, and informed consent, as well as benefit sharing. The former requirement is
According to the UNESCO Convention for the Safeguarding of Intangible Cultural Heritage,465 TK is a form of intangible cultural heritage as it is part of the ‘practices, knowledge, skills—as well as the instruments, objects … associated therewith—that communities, groups … and individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their … interaction with nature … and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.’466
To illustrate the linkage between TK and intangible cultural heritage, let us consider an example. The Andean Cosmology of the Kallawaya (Bolivia) is a masterpiece of humanity’s oral and intangible heritage, involving traditional medicine. The term Kallawaya means ‘herbalists from the sacred land of medicine’. The priest doctors have developed a traditional medicinal system by traveling through diverse ecosystems and learning about nearly 1,000 different medicinal plants. This traditional healing system is based not only on a deep understanding of the animal, mineral, and botanical pharmacopoeia but also on a set of ritual practices, such as religious ceremonies. In recent times, the traditional Kallawaya way of life has been adversely affected by
Protecting traditional knowledge has also become more difficult due to the increasing misappropriation of intangible cultural heritage by multinational corporations.467 Developing countries have been particularly affected by such biopiracy.468 As their biodiversity has not been depleted by industrialization, it is a source of genetic resources that TK holders often use to address specific problems. Foreign corporations have often sought to market TK-based products to Western consumers. Designs have been copied and commercially exploited without authorization;469 sacred knowledge has been disclosed and reproduced without authority.470 Items of traditional knowledge have been included in registered trademarks;471 TK has been patented by applicants without entitlement to do so. Such unauthorized use of TK has distressed its holders, causing them cultural and economic harm. Although TK constitutes a part of the identity of the cultural communities concerned, this form of intangible cultural heritage is vulnerable in a globalizing world where little room is left for the preservation of religious beliefs and alternative knowledge.
Three renowned cases well illustrate the clash between traditional knowledge and IP. In 1995, the US Patent and Trademark Office granted a patent on the wound-healing properties of turmeric. The claimed invention was considered novel at the time of application on the basis of the information then available to the examining authority. The patent was subsequently challenged and found invalid after additional evidence (including ancient Sanskrit scripts) revealed that turmeric was widely known to have ‘varied uses in cooking and medicine.’472 The patent was finally revoked.473
Another interesting case concerned an EPO patent application for an appetite-suppressant medicine. Aimed at preventing, treating, and combating obesity, the formula contained an extract from a plant of the genus Hoodia. This plant has been known for a long time as a traditional foodstuff of the original inhabitants of the Kalahari Desert, because eating the plant efficiently removes the pangs of hunger for days. In 2005, the Board of Appeal, reversing the Examining Division’s decision, held that ‘a skilled person, knowing that consumption of Hoodia removed the pangs of hunger, could not obviously derive from this disclosure that an extract from the plant could be used for the manufacture of an appetite suppressant, antiobesity medicament.’476
The TRIPS Agreement does not govern traditional knowledge as such. It ‘treats inventiveness as an isolated, individualized achievement of an identifiable inventor’ and emphasizes intellectual property rights as individual rights.477 Instead, TK ‘develops incrementally in response to a communal necessity’ and is collectively held and shared by communities.478 The TRIPS Agreement is premised on a Western conceptualization of knowledge, Cartesian rationality, and analytical methods. Such epistemology separates ‘subject from object, [the] observer from [the] observed’ and it accords ‘priority, control, and power to the first half of the duality’.479 It also ‘isolates its objects of study from their vital contexts.’480 Instead, TK is ‘spiritual, intuitive, and holistic’ and the individual
Can the international IP system be reformed to safeguard traditional knowledge and the cultural values associated with it? WTO ‘Members have consistently voiced support for the principles and objectives of the [Convention on Biological Diversity], including the principle of prior informed consent and the principle of equitable sharing of benefits.’483 Several proposals have been put forward, focusing on the reform or amendment of certain provisions and/or use of other rules of the TRIPS Agreement. Two proposals relate to the amendment of the patent system; three proposals relate to certification, trademarks, and geographical indications.
The first proposal suggests amending patentability requirements. As is known, patentability requires novelty, inventiveness, and practical applicability. The invention must be novel or involve an inventive step to be patented. As a general rule, patent applicants must disclose to the patent authority all information known to be material to the patentability.484 The proposed amendment would create a five-paragraph Article 29 bis in TRIP s, requiring the disclosure of the origin of biological resources and TK.485 According to this proposal, patent applications based on the use of TK should include a description of the TK utilized in the invention and evidence of compliance with national laws (that is, on access to and use of genetic resources and TK) and international principles regarding free, prior, and informed consent of Indigenous
A second proposal calls for the creation of TK-specific patent protection. For example, Cottier and Panizzon have proposed the creation of Traditional Intellectual Property Rights.487 However, the protection of TK through sui generis rights has been criticized as lacking a moral basis. It is unclear why ‘such a community should be entitled to a special right not available to others whose inventive predecessors gave the world comparable benefits.’488
Third, some proposals support the creation of an international certification system. Competent authorities would give written assurance that a product or process conforms with relevant international law requiring benefit sharing and free, prior, and informed consent. Such a certificate of origin would be required for patent applications. While national and regional certification schemes already exist, no consensus has been reached at the international level. The main objectives of an internationally recognized system would be to ensure the traceability of genetic resources, increase fairness and transparency, and combat biopiracy.
However, the development of an overly restrictive regime could have a negative impact on key areas of research. A particular source of concern is the need for rapid access to resources in the fight against infectious diseases such as SARS, Ebola, and COVID-19. Exemptions or waivers should be available in the event of an emergency to allow for easy access to genetic material.
Fourth, trademarks have been considered particularly suited to protect TK. As Frankel points out, ‘the potential indefinite duration of trademarks avoids the difficulties that finite terms of patent… pose for Indigenous peoples and local communities of traditional knowledge falling into the public domain. The recognition of an association between a sign and a particular source, rather than novelty and originality, accords more with the goal of protecting
Finally, geographical indications can give a particular community the right to prevent the use of the name of a place associated with a given product. The distinct advantage of protecting TK through GI s is that they share several features: the concepts of heritage and authenticity are central to both TK and GI s.491 Both TK and GI s recognize collective rights and underlying values.492 Neither has any temporal limitation. The main obstacle to TK protection through GIs is that ‘cultural identity is not always a question of geography.’493
In conclusion, TK is an important part of cultural heritage, the result of countless traditions and civilizations, and the ‘remnant of history that has casually escaped the shipwreck of time.’494 In fact, encounters between different civilizations have not always been peaceful or respectful of cultural diversity: ‘European colonization eroded and destroyed much of this traditional knowledge by replacing it with Western educational and cultural systems.’ Nowadays, economic globalization might even worsen this situation and hasten the process of cultural homogenization.495
Safeguarding TK is crucial not only because ‘all of society grows and benefits from [the] diversity of knowledge and ideas’ but also because such knowledge has ‘fed, clothed, and healed the world for centuries.’496 It offers a viable, holistic, and sustainable way of seeing and interacting with the world for the benefit of present and future generations.497 More interestingly, modern science ‘often confirms the ancient practices’ such as crop rotation
TK systems ‘do not interpret reality on the basis of a linear conception of cause and effect, but rather … [on the basis] of multidimensional cycles … [and] complex webs of interactions.’502 Such epistemology offers a culturally sensitive and complexity-aware model of development based on the ethic of stewardship (kaitiakitanga in Māori).503 The idea of being guardians (kaitiaki in Māori) of natural and cultural resources, of showing respect to all things on Earth, and taking care of their life force (mauri in Māori) and spirit (wairua in Māori), in exchange for the right to use resources responsibly constitutes a paradigm shift vis-à-vis the Western approach to the management of natural resources.504
TK often ‘falls outside the protection provided under the conventional system of intellectual property rights’ as endorsed and enhanced by the TRIPS Agreement.505 Such agreement adopts a proprietary, individualistic, and rationality-based model of knowledge governance that is fundamentally incompatible with the shared, communitarian, and holistic epistemology characterizing TK.506
9 Agriculture
Agriculture is another sector where trade and culture frequently collide.507 Economic globalization has deeply changed agriculture. While trade in agricultural products has undeniably facilitated access to food in many countries by increasing the availability of food and lowering food prices, globalization
First, agricultural production has intensified and become overspecialized. The imbalanced and unsustainable use of natural resources has disrupted traditional lifestyles, reduced biodiversity, and affected soil fertility, thus reducing communities’ resilience in times of crisis.508 Unsustainable farming practices have led to soil erosion, inefficient use of water, and pollution impacting both environmental health and human life.
Yet, when agriculture is practiced in a sustainable way, it can preserve cultural landscapes and biological and cultural diversity, protect watersheds, improve environmental health, and preserve associated cultural values. The use of sustainable practices such as agroforestry, intercropping, and crop rotation characterize resilient agricultural models developed over centuries. Accordingly, agricultural heritage, meant as inherited landscapes and their associated management systems, can provide sustainable, resilient, and viable models of agricultural production.509
Second, the consumption of agricultural products has changed as food is traded long distances.510 Of course, ‘agricultural trade is both broader and narrower than trade in food. On the one hand, it encompasses non-food products such as cotton[;] on the other hand, important food products, most notably fish, are excluded from the ambit of agricultural trade.’511 In long food chains, raw ingredients are usually transformed into processed products with considerable sugar, salt, and fat content.512 This has changed dietary habits worldwide as people increasingly consume food rich in sugar, salt, and fat. Not only has the new global diet increased the risk of non-communicable diseases (NCD s) thus constituting a global health threat in both industrialized and developing countries, but it can also lead to the gradual abandonment of traditional food cultures with the resulting loss of cultural diversity. Nowadays, economic globalization has led to the convergence if not homogenization of food, eating habits, and foodways.
Third, changes in agricultural production and consumption have also affected the development of civilizations: ‘Each civilization has been characterized not only by its arts, literature, and politics, but also … by its … food habits.’516 As the historian Fernand Braudel wrote, ‘The vine and wine are products of civilization, just as the tea of the Chinese and Japanese is the sign of their special culture.’517 Because of economic globalization and agricultural market liberalization, local farmers have had to compete with imports.518 Competition has driven prices down and forced certain farmers out of business. This phenomenon has also touched products that have been central to a country’s culture.519 For example, the influx of highly subsidized corn from the United States has undermined the ability of Mexican farmers to grow corn, a crop that Mexicans have cultivated for centuries.520 Corn is an essential component of traditional Mexican cuisine, which is also listed on the Representative List of the Intangible Cultural Heritage of Humanity.521 Concerns for fading rural cultures have accompanied industrialization processes for more than a century.522 Rural culture certainly ‘relates to the culture of production,
Against this background, the WTO’s Agreement on Agriculture524 requires the use of tariffs instead of quotas, imposes minimum market access requirements, and provides rules on domestic support and export subsidies in the agricultural sector. It is based on the market liberalization model and economic efficiency criteria.525 It requires WTO Members to convert non-tariff barriers to tariffs, lower tariff barriers to trade, and reduce export subsidies. By gradually reducing the protections available for domestic agricultural sectors, the agreement does ‘not allow farmers to maintain their current methods of production solely on cultural or environmental grounds, if those methods prevent the farmers from efficiently adjusting their production in line with market forces.’526 Rather, the WTO regards agriculture ‘as an economic sector like any other industrial sector.’527
Developing countries have traditionally sought agricultural trade liberalization, demanding the dismantling of trade-distorting and protectionist agricultural policies of the EU, the United States, and other industrialized countries. Trade in agricultural products has been on the agenda for negotiations of the Doha Development Round. In 2015, an agreement was reached on the elimination of agricultural export subsidies by 2018.528
While negotiations on agriculture remain open, some 40% of WTO disputes have involved edible products.529 Countries have adopted protective tariffs and taxation measures to protect domestic agricultural production and/or food consumption patterns. For instance, in an early case, Spain altered its tariff classifications for unroasted coffee. No custom duties were imposed on mild types of coffee while 7% was imposed on the other types. Most of Brazil’s exports of coffee to Spain were subject to higher tariff rates. Most duty-free coffee varieties came from Spain’s former colonies. Although the target of protection was not local production, Brazil argued that the measure amounted to a violation of the MFN provision, because local consumption patterns ended up
Korea and Japan adopted measures overtly favoring the local rice-based Soju (in Korea) and Shochu (in Japan) over foreign drinks.531 Chilean measures set a low tax rate for low alcoholic beverages such as Pisco and imposed a high tax rate for the higher alcoholic imported brandies.532 In such cases, WTO courts have found a breach of the non-discrimination provisions under Articles I and III of the GATT.
More interestingly, in these leading cases, cultural arguments or exceptions were not emphasized or raised respectively.533 On the one hand, the linkage between culture and trade has traditionally focused on audiovisual products. Yet, cultural products are a broader category that includes foodways meant as cultural practices relating to food production and consumption. Therefore, consumers’ cultural preferences could be relevant in assessing the likeness of competing products. On the other hand, there is no general cultural exception at the WTO generally exempting cultural products from the application of WTO law. More fundamentally, these cases well illustrate the point that it may be difficult to draw the line between covert trade protectionism and genuine cultural policies.
One of the most important culture clashes regarding agricultural products has been governing food safety regulation. As noted by Voon, ‘although WTO disputes in this field are not typically framed in terms of “culture”, consumers’ perception and tolerance of risk in connection with food safety often have cultural foundations.’534 In general terms, while European citizens ‘have tended to favor traditional foods and minimal processing, being sceptical of new technologies, … Americans have been more willing to accept new technologies … but
The WTO Sanitary and Phytosanitary Agreement536 encourages WTO members to base sanitary and phytosanitary measures on internationally accepted scientific standards in order to meet the public interest in food safety.537 However, conflicts have arisen with regard to the interpretation of scientific evidence. For instance, in EC—Hormones, the WTO Appellate Body held that the EU had violated several provisions of the SPS Agreement in restricting the trade of meat treated with hormones.538 Given the firm opposition to such use in the EU, the EU failed to comply and arbitration followed on the extent to which the United States could retaliate against the EU for its non-compliance.539 Finally, the parties settled the dispute more than ten years after the AB had ruled on the dispute, ‘demonstrating the extreme difficulty involved in resolving conflicts arising from deeply held cultural beliefs.’540
Similarly, as science has advanced to new levels, the EU has prevented trade in GMO s on health, environmental, and biosafety grounds. The United States has nonetheless challenged such measures considering them a form of
10 Conclusions
The WTO is a legally binding and highly effective regime that demands that states promote and facilitate free trade. The WTO system governs international trade based on a free-market paradigm and its rules are about trade.542 It is not interested in culture, cultural heritage, and cultural diversity as such. These issues are considered non-economic concerns and therefore remain at the margins of the regime.543 The GATT Contracting Parties and the WTO Members have never agreed on the introduction of a general cultural exception.
Although the covered agreements do not aim to govern cultural heritage, and instead assume they indirectly touch upon it, international trade and cultural diversity have increasingly intersected.544 In theory, several mechanisms are available within the WTO to promote mutual supportiveness between different fields of international law. In practice, however, much remains to be done to improve the coherence across the different fields of law.
For the time being, free trade essentially sees cultural goods as tradable commodities as any other. Under the non-discrimination provision, Members cannot justify the differentiation of given products on cultural grounds, but this can change through the consideration of consumers’ preferences and reconsideration of the aims-and-effects test. Nonetheless, cultural aspects have been factored into trade law. Article IV of the GATT provides a specific exception for screen quotas, even though the precise content of this provision and its interplay with the GATS remain unclear. The general exceptions provisions in GATT 1994 and GATS also provide Members some flexibility for adopting cultural policies. Article XX of the GATT contains limited exceptions for the protection of public morals and national treasures.545 In any case, the absence of an explicit reference to culture in GATT Article XX or GATS Article XIV does not mean that measures adopted to protect
Cultural heritage-related trade disputes are generally characterized by the need to strike a balance between the preservation of cultural heritage and the promotion of free trade. Many such controversies arise during trade negotiations or are brought before the WTO Dispute Settlement Mechanism. The WTO courts do not have a specific mandate to assess the cultural implications of the disputes they are adjudicating. It is therefore no surprise that such courts have paid little attention to the cultural aspects of trade disputes. In applying the exceptions, WTO courts have been ‘open-minded in identifying legitimate policy objectives of Members’, but ‘strict’ in applying the necessity and chapeau requirements.547
Like other specialized international courts and tribunals, WTO courts may have a built-in bias (Missionsbewusstsein).548 It is evident that ‘an adjudicatory system engaged in interpreting trade-liberalizing standards would tend to favor free trade.’549 WTO panels and the AB are tribunals of limited jurisdiction and cannot adjudicate on eventual infringements of cultural entitlements. As such, WTO panels and the AB do not decide whether cultural heritage is safeguarded by a given state measure; rather, their prime task is ‘to preserve the rights and obligations of members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law’.550
The existence of a highly sophisticated dispute settlement mechanism in international trade law risks eclipsing the salience of other regimes, such as international cultural heritage law, which lacks such a mechanism. Economic globalization can affect cultural diversity, and the WTO courts may not be the most appropriate courts for settling cultural heritage disputes. Nonetheless, cultural heritage matters, and the existence of such disputes requires a sustained reflection on whether international law is indeed a fragmented system by nature, or whether there are tools to promote better coordination among
Nazim Hikmet, Poems [1973] (New York: Persea 2002).
Bruno de Witte, ‘Trade in Culture: International Legal Regimes and EU Constitutional Values’ in Joanne Scott and Grainne De Búrca (eds), The EU and the WTO (Oxford and Portland: Hart Publishing 2001) 238.
See generally Herbert Schiller, Culture, Inc. (New York: OUP 1989).
Thomas L Friedman, The Lexus and the Olive Tree (New York: Farrar 1999) 8.
Olaf Weber, ‘From Regional to Global Freedom of Trade in Audio-Visual Goods and Services?’, in Rachael Craufurd Smith (ed.), Culture and European Union Law (Oxford: OUP 2004) 353–382, 355.
Marilena Alivizatou, ‘Contextualising Intangible Cultural Heritage in Heritage Studies and Museology’ (2008) 3 International Journal of Intangible Heritage 43, 46.
Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, Article 27.
Tomer Broude, ‘Mapping the Potential Interactions between UNESCO’s Intangible Cultural Heritage Regime and World Trade Law’ (2018) 25 International Journal of Cultural Property 419–448, at 433.
Weber, ‘From Regional to Global Freedom of Trade in Audio-Visual Goods and Services?’ 380.
Weber, ‘From Regional to Global Freedom of Trade in Audio-Visual Goods and Services?’ 380.
Joel Trachtman, ‘International Legal Control of Domestic Administrative Action’ (2014) 17 JIEL 753; Wenhua Shan, Penelope Simons, and Dalvinder Singh (eds), Redefining Sovereignty in International Economic Law (Oxford: Hart Publishing 2008).
For a seminal study, see John Morijn, Reframing Human Rights and Trade—Potential and Limits of a Human Rights Perspective of WTO Law on Cultural and Educational Goods and Services (Intersentia 2010); Valentina Vadi, ‘Human Rights and Investments at the World Trade Organization’, in Yannick Radi (ed.), Research Handbook on Human Rights and Investments (Cheltenham: Edward Elgar 2019) 158–185.
See Tania Voon, Cultural Products and the World Trade Organization (Cambridge: CUP 2007); Jingxia Shi, Free Trade and Cultural Diversity in International Law (Oxford: Hart Publishing 2013); Valentina Vadi and Bruno De Witte (eds), Culture and International Economic Law (London: Routledge 2015).
Ileana Porras, ‘Appropriating Nature: Commerce, Property, and the Commodification of Nature in the Law of Nations’ (2014) 27 Leiden JIL 641–660, 651.
Alberico Gentili, De Iure Belli [1598], John C. Rolfe (transl.) (Oxford: Clarendon Press 1933) Book I, Chapter XIX, p. 88.
Id.
Ileana Porras, ‘The Doctrine of the Providential Function of Commerce in International Law—Idealizing Trade’, in Martti Koskenniemi, Mónica García-Salmones Rovira, and Paolo Amorosa (eds), International Law and Religion (Oxford: OUP 2017) 313–333.
Hugo Grotius, Mare Liberum, Robert Feenstra (ed.) (Leiden/Boston: Brill 2009) Chapter I, p. 2.
Ileana Porras, ‘Constructing International Law in the East Indian Seas: Property, Sovereignty, Commerce, and War in Hugo Grotius’ De Iure Praedae’ (2005–2006) 31 Brooklyn JIL 741–804, 760.
Id. 762.
John H. Jackson, The World Trading System—The Law and Policy of International Economic Relations (Cambridge, MA: MIT Press 1997) 12.
Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations [1776] R.H. Campbell and A.S. Skinner (eds) (Oxford: OUP 1976) 456–457.
Jackson, The World Trading System, 15.
David Ricardo, On the Principles of Political Economy and Taxation (London: John Murray 1817).
See generally Ricardo, On the Principles of Political Economy and Taxation.
Raj Bhala, International Trade Law: Cases and Materials (Lexis 1996) 5–10.
John Stuart Mill, Principles of Political Economy (London: John Parker 1848).
Asif H. Qureshi and Andreas R. Ziegler, International Economic Law, II ed. (London: Sweet & Maxwell 2007) 11.
Jackson, The World Trading System, 17.
Qureshi and Ziegler, International Economic Law, 11.
See generally Paul Shaffer, Ravi Kanbur, and Richard Sandbrook (eds), Immiserizing Growth—When Growth Fails the Poor (Oxford: OUP 2019).
For an early articulation of this argument, see Friedrich List, The National System of Political Economy [1841] Sampson S. Lloyd (transl.) (London: Longmans, Green & Co. 1885).
Jackson, The World Trading System, 17.
Mill, Principles of Political Economy, Book 5.
Jackson, The World Trading System, 19.
Valentina Vadi, War and Peace—Alberico Gentili and the Early Modern Law of Nations (Leiden: Brill 2020).
But see Dennis Hidalgo, ‘Anticolonialism’, in Thomas Benjamin (ed.), Encyclopedia of Western Colonialism since 1450 (Detroit: Macmillan 2007) 57–65 (reporting that in The Wealth of Nations, Adam Smith argued that Britain should grant independence to its colonies).
David Williams, ‘John Stuart Mill and the Practice of Colonial Rule in India’ (2020) 17 Journal of International Political Theory 412–428.
Kalim Siddiqui, ‘David Ricardo’s Comparative Advantage and Developing Countries: Myth and Reality’ (2018) 8 International Critical Thought 426–452.
Damian Ukwandu, ‘David Ricardo’s Theory of Comparative Advantage and its Implication for Development in Sub-Saharan Africa—A Decolonial View’ (2015) 8 African Journal of Public Affairs 17–34, 26.
See e.g. Charlotte Vekemans and Yves Segers, ‘Settler Farming, Agricultural Colonization, and Development in Katanga (Belgian Congo) 1910–1920’ (2020) 81 Historia Agraria 195–226 at 206.
Rosa Luxemburg, The Accumulation of Capital [Die Akkumulation des Kapitals, 1913] (New York: Monthly Review Press 1968).
Matthew Watson, ‘Historicising Ricardo’s Comparative Advantage Theory, Challenging the Normative Foundations of Liberal International Political Economy’ (2017) 22 New Political Economy 257–272.
Lisa Trivedi, Clothing Gandhi’s Nation: Homespun and Modern India (Bloomington and Indianapolis: Indiana University Press 2007) 86.
John Stuart Mill, ‘On the Definition of Political Economy, and on the Method of Investigation Proper to It,’ in Essays on Some Unsettled Questions of Political Economy, 2nd ed. (London: Longmans, Green, Reader & Dyer 1874) essay 5, paras 38 and 48.
Sergio Caruso, Homo Oeconomicus. Paradigma, Critiche, Revisioni (Florence: Firenze University Press 2012).
Elizabeth Anderson, ‘Beyond Homo Economicus: New Developments in Theories of Social Norms’ (2000) 29 Philosophy & Public Affairs 170–200, at 171.
See generally Hope Johnson, International Agricultural Law and Policy (Cheltenham: Edward Elgar 2018).
Vadi, War and Peace, 297.
Gentili, De Iure Belli, Book I, Chapter 21, pp. 101–102.
Id. Book I, Chapter 3, p. 18.
Id.
Id.
Vadi, War and Peace, 298.
Gentili, De Iure Belli, Book I, Chapter 19, pp. 89–90
Id. p. 90.
Id. Book I, Chapter 21, p. 102.
Thomas Cottier and Matthias Oesch, ‘Direct and Indirect Discrimination in WTO Law and EU Law’, Sanford Gaines, Birgitte Egelund Olsen, and Karsten Engsig Sørensen (eds), Liberalizing Trade in the EU and the WTO: A Legal Comparison (Cambridge: CUP 2012) 141–175, 141, and 146.
General Agreement on Tariffs and Trade (GATT 1947), 30 October 1947, 55 UNTS 194, as incorporated in the Marrakesh Agreement, Annex 1A General Agreement on Tariffs and Trade 1994 (GATT 1994), Article I; General Agreement on Trade in Services (GATS), 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, 33 ILM 44 (1994), Article 2; Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIP s Agreement), 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 UNTS 299, 33 ILM 1197, Article 4.
GATT Article III; GATS Article 17; and TRIPS Agreement Article 3.
See Italian Discrimination Against Imported Agricultural Machinery, adopted 23 October 1958, BISD 7S/60 (credit facilities were reserved exclusively to the purchasers of Italian tractors thus discriminating against foreign tractors).
Lothar Ehring, ‘De Facto Discrimination in WTO Law: National and Most-Favored-Nation Treatment – or Equal Treatment?’ Jean Monnet Working Paper 12/01 (2001) 6.
Panel Report, Japan—Customs Duties, Taxes, and Labelling Practices on Imported Wines and Alcoholic Beverages, adopted 10 November 1987, BISD 34S/83.
Id. para. 5.9.
Panel Report, Japan—Taxes on Alcoholic Beverages, WT/DS8/R, WT/DS10/R, WT/DS11/R, circulated 11 July 1996, DSR 1996:I, 125, paras 6.24 and 6.27.
Panel Report, Korea—Taxes on Alcoholic Beverages, WT/DS75/R, WT/DS84/R, circulated 17 September 1998, para. 10.102.
Panel Report, United States—Measures Affecting Alcoholic and Malt Beverages, adopted 19 June 1992, BISD 39S/206, paras 5.23–5.26.
Petros C. Mavroidis, ‘The Gang That Couldn’t Shoot Straight: The Not So Magnificent Seven of the WTO Appellate Body’, (2016) 27 EJIL 1107–1118, footnote 25.
Theodore Bestor, ‘Most F(l)avoured Nation Status: the Gastrodiplomacy of Japan’s Global Promotion of Cuisine’ (2014) 11 Public Diplomacy 59–62, at 60.
Id. 61.
Mavroidis, ‘The Gang That Couldn’t Shoot Straight.’
AB Report, Japan—Taxes on Alcoholic Beverages, WT/DS8, -10, -11/AB/R, 4 October 1996.
Daniel Moecki, ‘Equality and Non-Discrimination’, in Daniel Moeckli, Sangeeta Shah, and Sandesh Sivakumaran (eds), International Human Rights Law (Oxford: OUP 2018) 148–163, 149.
Robert Hudec, ‘GATT/WTO Constraints on National Regulation: Requiem for an Aim and Effects Test’ (1998) 32 International Lawyer 619–49, 623.
Moeckli, ‘Equality and Non-Discrimination’, 150.
Human Rights Committee, Singh Bhinder v. Canada, CCPR/C/37/D/208/1986, 9 November 1989.
African Commission of Human and Peoples’ Rights, Purohit and Moore v. The Gambia, Case 241/2001, paras 53–4.
Hudec, ‘GATT/WTO Constraints on National Regulation’, 626.
WTO Appellate Body Report, EC—Measures Affecting Livestock and Meat Products (Hormones), WT/DS26/AB/R, 16 January 1998.
Panel Report, EC—Measures Concerning Meat and Meat Products (Hormones), WT/DS26/R/USA, circulated 18 August 1997, DSR 1998:III, 699, para. 8.205.
Panel Reports, European Communities—Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R; WT/DS292/R; WT/DS293/R, 29 September 2006.
Agreement on the Application of Sanitary and Phytosanitary Measures, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 493.
John Beghin, ‘The Protectionism of Food Safety Standards in International Agricultural Trade’ (2014) 1 Agricultural Policy Review 7–9.
David Wirth, ‘The World Trade Organization Dispute Over Genetically Modified Organisms: The Precautionary Principle Meets International Trade Law’ (2013) 37 Vermont LR 1153–1188, 1166.
Frans Brom, ‘WTO, Public Reason, and Food’ (2004) 7 Ethical Theory and Moral Practice 417–431.
Appellate Body Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5 April 2001, para. 90.
Appellate Body Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5 April 2001, para. 100.
Appellate Body Report, Japan—Taxes on Alcoholic Beverages II, WT/DS8/AB/R, WT/DS10/AB/R; WT/DS11/AB/R, 4 October 1996, p. 21.
Appellate Body Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, 12 March 2001, paras 96 and 99.
Appellate Body Report, Japan—Taxes on Alcoholic Beverages II, at 113.
Appellate Body Report, United States—Standards for Reformulated and Conventional Gasoline, WT/DS2/9, 20 May 1996; Appellate Body Report, United States—Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/AB/R, 4 April 2012, para. 120.
Hahn, ‘A Clash of Cultures?’, 550.
Id.
Donald H. Regan, ‘Regulatory Purpose and Like Products in Article III:4 of the GATT’ in George Bermann and Petros Mavroidis (eds), Trade and Human Health and Safety (New York: CUP 2006) 190–223, 192.
Japan—Taxes on Alcoholic Beverages, WT/DS8, DS10, & DS11/AB/R, Appellate Body report, 4 October 1996.
United States—Measures Affecting Alcoholic and Malt Beverages, DS23/R, Panel report, adopted on 19 June 1992, para. 5.71.
Hahn, ‘A Clash of Cultures?’, 551.
Regan, ‘Regulatory Purpose and Like Products in Article III:4 of the GATT’, 198.
Id. 200.
Cottier and Oesch, ‘Direct and Indirect Discrimination in WTO Law’, 149.
ECJ, Commission of the European Communities v Federal Republic of Germany, C-178/84, Judgment of the Court, 12 March 1987.
See Ming Du, The Regulation of Product Standards in World Trade Law (Oxford: Hart 2020).
Agreement on Technical Barriers to Trade (TBT Agreement), 1868 UNTS 120.
Tomer Broude, ‘Mapping the Potential Interactions between UNESCO’s Intangible Cultural Heritage Regime and World Trade Law’ (2018) 25 International Journal of Cultural Property 419–448, 423.
Andrew Mitchell, David Heaton, and Caroline Henckels, Non-Discrimination and the Role of Regulatory Purpose in International Trade and Investment Law (Cheltenham: Edward Elgar 2016).
Martijn Huysman, ‘Exporting Protection: EU Trade Agreements, Geographical Indications, and Gastronationalism’ (2020) Review of International Political Economy 1–29.
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIP s Agreement), 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 UNTS 299, 33 ILM 1197, Articles 22 and 23.
TRIPS Agreement Article 22.1.
Huysman, ‘Exporting Protection’, at 4–5.
See Sarah Besky, ‘The Labor of Terroir and the Terroir of Labor: Geographical Indication and Darjeeling Tea Plantations’ (2014) 31 Agriculture and Human Values 83–96.
The TRIPS Agreement does not contain a provision on general exceptions; rather, Articles 3 and 4 of the agreement only allow for a limited range of exemptions to non-discrimination.
Aaron Scow, ‘The Sports Illustrated Canada Controversy: Canada Strikes Out in Its Bid to Protect Its Periodical Industry from U.S. Split-Run Periodicals’ (1998) 7 Minnesota JIL 245–85, 247.
Id. 256.
Id. 258.
Id. 261.
Id. 248.
Id. 267–8.
Joel R Paul, ‘Cultural Resistance to Global Governance’ (2000–2001) 22 Michigan JIL 1, 48.
Scow, ‘The Sports Illustrated Canada Controversy’, 261.
Id. 268.
WTO Panel Report, Canada—Certain Measures Concerning Periodicals, 15 March 1997, WTO Doc WT/DS31/R, para.5.45.
Paul, ‘Cultural Resistance to Global Governance’, 51.
WTO Panel Report, Canada—Periodicals, para. 5.24.
Id. para. 5.1.
Scow, ‘The Sports Illustrated Canada Controversy’, 271.
Id.
WTO Appellate Body Report, Canada—Certain Measures Concerning Periodicals, 30 June 1997, UN Doc WT/DS31/AB/R.
Council Regulation (EC) 1007/2009 of 16 September 2009 on Trade in Seal Products [2009] OJ (L286) 36.
Id. Article 3(1).
Id. Article 3(2)(b).
Id. Article 3(2)(a).
United Nations Declaration on the Rights of Indigenous Peoples, adopted on 13 September 2007, A/RES/61/295.
WTO Panel, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, 25 November 2013, UN Doc WT/DS400/R and WT/DS401/R, para. 7.2.
EC—Seal Products, panel report, paras 7.161 and 7.164.
Id. para. 7.141.
Id. para. 7.46.
Id. para. 7.4.
Id. para. 7.226.
Id. para. 7.136.
Id. para. 7.292.
Id. para. 7.294.
Id. fn 475.
Id. para. 7.317
Id. para. 8(2).
Id. para. 8(3)(a).
EC—Seal Products, panel report, para. 7.409.
Id. para. 7.651.
WTO Appellate Body, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, 22 May 2014, WTO Docs WT/DS400/AB/R and WT/DS401/AB/R, para. 5.339.
Id. para. 5.327.
Id. para. 5.328.
Id. para. 6.1(d)(III).
Shin-Yi Peng, ‘International Trade in Cultural Products—UNESCO’s Commitment to Promoting Cultural Diversity and its Relations with the WTO’ (2008) 11 International Trade and Business LR 218, 221.
Mira Burri Nenova, ‘Trade Versus Culture in the Digital Environment: An Old Conflict in Need of a New Definition’ (2008) 12 JIEL 17–62, 28.
Anne Orford, ‘Theorizing Free Trade’ in Anne Orford and Florian Hoffmann (eds), The Oxford Handbook of the Theory of International Law (Oxford: OUP 2016) 701–737, at 702.
Id. 734.
GATT Article XI.
Panel Report, Turkey–Textiles and Clothing, WT/DS34/R, para. 9.63.
Agreement on Agriculture, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 410.
WTO Committee on Market Access, Notification of Quantitative Restrictions (QRS): A Practical Guide, JOB/MA/101/Rev.2, 28 September 2018, pp. 7–8.
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, 14 November 1970, 823 UNTS 231.
Robert K. Paterson, ‘Moving Culture: The Future of National Cultural Property Export Controls’ (2012) 18 Southwestern JIL 287–294, 288.
Japan—Measures on Imports of Leather, Panel Report, 15 May 1984, BISD 31S, 94.
Id. para. 21(I).
See generally Christopher Bondy, Silence and Self: Negotiations of Buraku Identity in Contemporary Japan (Boston: Harvard University Press 2015).
Japan—Measures on Imports of Leather, Panel Report, para. 21(IV).
Id. para. 21(VI).
Id. para. 22.
Id. para. 44.
General Agreement on Tariffs and Trade, GATT Doc LT/UR/A-1/A/1/GATT/2, signed 30 October 1947 (GATT 1947), as incorporated in the Marrakesh Agreement, Annex 1A General Agreement on Tariffs and Trade 1994 (GATT 1994).
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, 14 November 1970, 823 UNTS 231.
General Agreement on Tariffs and Trade, 15 April 1994, 1867 UNTS 187, Article XX(f).
Distinguishing other types of cultural policies from protectionism may be more difficult. See e.g. Tania Voon, ‘State Support for Audiovisual Products in the World Trade Organization: Protectionism or Cultural Policy?’ (2006) 13 International Journal of Cultural Property 129–160.
Compare with the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, 249 UNTS 215, Article 1 (listing categories of objects defined as cultural property); the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, 14 November 1970, 823 UNTS 231, Article 1 (listing categories defined as ‘cultural property’); and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, 24 June 1995, in force 1 July 1998, (1995) 34 ILM 1322 (generally referring to cultural objects).
William Kerr, ‘Loopholes, Legal Interpretations, and Game Playing: Whither the WTO without the Spirit of the GATT?’ (2019) 20 Journal of International Law and Trade Policy 49–60, 50.
Jia Min Cheng, ‘The Problem of National Treasure in International Law’ (2010) 12 Oregon Review of International Law 141–174, 152.
League of Nations, Convention on the Abolition of Import and Export Prohibitions and Restrictions, Geneva, 8 November 1927, 46 Stat 2461, USTS 811, Article 4(5).
Treaty on the Functioning of the European Union (TFEU), opened for signature 7 February 1992, entered into force 1 November 1993, OJC 326 p. 47, Article 36 (referring to ‘the protection of national treasures possessing artistic, historic, or archaeological value); Protocol on Trade in the Southern African Development Community (SADC) Region, signed 1 August 1996, entered into force 25 January 2001, Article 9(f). But see EU Regulation 2019/880 on the Importation of Cultural Goods (setting out the conditions and procedures for the import of cultural goods for the purpose of safeguarding humanity’s cultural heritage and preventing the illicit trade in cultural goods, in particular where such illicit trade could contribute to terrorist financing).
Michele Graziadei and Barbara Pasa, ‘The Single European Market and Cultural Heritage: The Protection of National Treasures in Europe’ in Andrzej Jakubowski, Kristin Hausler, and Francesca Fiorentini (eds), Cultural Heritage in the European Union—A Critical Inquiry into Law and Policy (Leiden: Brill 2019) 79–112, 101.
Cheng, ‘The Problem of National Treasure in International Law’, 144.
Andrea Biondi, ‘The Merchant, the Thief & the Citizen: The Circulation of Works of Art Within The European Union’ (1997) 34 Common Market LR 1173–1195, 1173 ff.
Steve Charnovitz, ‘The Moral Exception in Trade Policy’ (1998) 38 Virginia JIL 689–737, footnote 62.
VCLT Article 31(3)(c).
See, ex multis, Arbitration Regarding the Iron Rhine (Ijzeren Rijn) Railway (Belgium v. Netherlands), Arbitral Award, 24 May 2005, paras 80–85.
Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, 6 November 1998, para. 130.
Panel Report, United States—Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, 2 September 2011, paras 2.29–2.30.
Id. paras 7.427–28.
The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transport of Ownership of Cultural Property (1970 UNESCO Convention), opened for signature 14 November 1970, in force 24 April 1972, 823 UNTS 231.
Patty Gerstenblith, ‘Controlling the International Market in Antiquities: Reducing the Harm, Preserving the Past’ (2007) 8 Chicago JIL 169–195, 176.
1970 UNESCO Convention Article 10(a).
1970 UNESCO Convention Article 6.
1970 UNESCO Convention Article 7(b)(1).
Id. Article 7(b) (ii).
Id. Article 9.
Keun-Gwan Lee, ‘Asia’ in Francesco Francioni and Ana Filipa Vrdoljak (eds), Oxford Handbook of International Cultural Heritage Law (Oxford: OUP 2020) 835–859, 843.
Kérya Chan Sun, ‘Angkor Sites, Cultural World Heritage’, in Barbara Hoffman (ed.), Art and Cultural Heritage—Law, Policy, and Practice (Cambridge: CUP 2006) 148–156, 153.
Lee, ‘Asia’, 850–1.
Id.
Memorandum of Understanding between the Government of the United States of America and the Government of the People’s Republic of China Concerning the Imposition of Import Restrictions on Categories of Archaeological Material from the Paleolithic Period Through the Tang Dynasty and Monumental Sculpure and Wall Art at least 250 Years Old, 14 January 2009, <https://eca.state.gov/files/bureau/ch2009mou.pdf> (accessed on 3 March 2022).
Tania Voon, ‘The Security Exception In WTO Law: Entering a New Era’ (2019) 113 AJIL Unbound 45–50.
William A. Kerr, ‘Loopholes, Legal Interpretations, and Game Playing: Whither the WTO without the Spirit of the GATT?’ (2019) 20 Journal of International Law and Trade Policy 49–60, 49.
Tania Voon, ‘National Treasures at the Intersection Between Cultural Heritage and International Trade Law’ in Francesco Francioni and Ana Filipa Vrdoljak (eds), Oxford Handbook of International Cultural Heritage Law (Oxford: OUP 2020) 507–527, 518.
Id. 518.
United States—Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, Appellate Body Report, adopted 20 May 1996, p. 18.
See e.g. Article XX(a) (referring to measures necessary to protect public morals); XX(b)(referring to measures necessary to protect human, animal or plant life or health) and XX(d) (referring to measures necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of the GATT).
United States—Import Prohibition of Certain Shrimp and Shrimp Products (US—Shrimp), WT/DS58/AB/R, Appellate Body Report, adopted 6 November 1998, para. 156.
Voon, ‘National Treasures at the Intersection Between Cultural Heritage and International Trade Law’, 517.
Appellate Body Report, Brazil—Measures Affecting Imports of Retreaded Tyres (Brazil—Retreaded Tyres), WT/DS332/AB/R, 3 December 2007, para. 233.
Donald McRae, ‘International Economic Law and Public International Law: The Past and The Future’ (2014) 17 JIEL 627–638.
Appellate Body Report, US—Gasoline, at 16.
Joost Pauwelyn, ‘The Role of Public International Law in the WTO: How Far Can We Go?’ (2001) 95 AJIL 535–578, 538.
Understanding on the Rules and Procedures Governing the Settlement of Disputes (DSU), Annex 2 to the Marrakesh Agreement Establishing the World Trade Organization, 33 ILM 1226 (1994), Article 3.2.
McRae, ‘International Economic Law and Public International Law’, 627.
Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, p. 331.
VCLT Article 31.
VCLT Article 31(1).
Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted on 6 November 1998, paras 130–132.
AB Report, US—Gasoline, p. 17.
AB Report, US—Shrimp, para. 129.
See generally Panos Merkouris, Article 31(3)(c) VCLT and the Principle of Systemic Integration: Normative Shadows in Plato’s Cave (Leiden: Brill 2015); Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 ICLQ 279–319.
VCLT Article 31(3)(c).
This term was introduced by Xue Hanqin, the Chinese Judge at the International Court of Justice, during the ILC debates on the significance of Article 31(3)(c). ILC, Final Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 420, UN Doc. A/CN.4/L.682, 13 April 2006 (prepared by Martti Koskenniemi).
AB Report, Peru—Additional Duty on Imports of Certain Agricultural Products (Peru—Agricultural Products) WT/DS457/AB/R, 20 July 2015, para. 5.106.
See e.g. Panel Report, European Communities—Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R; WT/DS292/R;WT/DS293/R, 29 September 2006, paras 7.68–7.70.
Cartagena Protocol on Biosafety to the Convention on Biological Diversity, adopted on 29 January 2000, in force on 11 September 2003, 39 ILM 1027.
See Benn McGrady, ‘Fragmentation of International Law or Systemic Integration of Treaty Regimes: EC—Biotech Products and the Proper Interpretation of Article 31(3)(c) of the Vienna Convention on the Law of Treaties’ (2008) 42 JWT 589–618.
Appellate Body Report, EC and Certain Member States—Large Civil Aircraft, WT/DS316/AB/R, 18 May 2011, paras 844–845.
Id.
Voon, ‘National Treasures at the Intersection Between Cultural Heritage and International Trade Law’, 521.
ICJ, Case Concerning the Oil Platforms (Iran v. United States of America), 42 ILM 1334 (2003), Judgment, 6 November 2003, para. 41.
Andrés Felipe Celis Salazar, ‘Can WTO Members Rely on Non-WTO Law to Justify a Violation of WTO Law?’ (2007) 10 International Law: Revista Colombiana de Derecho Internacional 341–354.
Appellate Body Report, Mexico—Tax Measures on Soft Drinks and Other Beverages, WT/DS 308/AB/R, 6 March 2006, and Panel Report, WT/DS308/R, adopted as modified by the Appellate Body Report.
Appellate Body Report, Mexico—Soft Drinks, paras 48–49.
GATT Article XX(d).
Panel Report, Mexico—Soft Drinks, para. 8.181.
Gabrielle Marceau, ‘Conflicts of Norms and Conflicts of Jurisdictions: The Relationship Between WTO Agreement and MEA s and Other Treaties’ (2001) 36 JWT 1088–1090.
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 21 June 1971, ICJ Reports 1971, p. 16, para. 53.
Voon, ‘National Treasures at the Intersection Between Cultural Heritage and International Trade Law’, 516.
Gabriele Gagliani, ‘Interpreting and Applying Article XX(f) of the GATT 1994: National Treasures in International Trade Law’ (2019) 2 Santander Art and Culture LR 35–56, 35.
Francesco Francioni, ‘The Evolving Framework for the Protection of Cultural Heritage in International Law’, in Silvia Borrelli and Federico Lenzerini (eds), Cultural Heritage, Cultural Rights, Cultural Diversity (Leiden: Brill 2012) 24.
Tania Voon, ‘A New Approach to AudioVisual Products in the WTO: Rebalancing GATT and GATS’ (2007) 14 University of California Los Angeles Entertainment LR 1–32, 13 (noting that contemporary ‘products of the audiovisual industries are unlikely to be of historic or archaeological value, and they might not be of sufficient artistic value to be described as national treasures.’)
Case C-531/07 Fachverband der Buchund Medienwirtschaft v LIBRO Handelsgesellschaft mbH [2009] ECJ Rep. I-3717 para. 32.
Convention on the Protection of the Underwater Cultural Heritage, 2 November 2001, 41 ILM 40, Article 1 (defining underwater cultural heritage as ‘all traces of human existence having a cultural, historical, or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years.’)
See Christian Fraser, ‘Whale Fossil is Found in Vineyard’, BBC News, 23 March 2007.
Voon, ‘National Treasures at the Intersection Between Cultural Heritage and International Trade Law’, 510.
Id. 527.
See WTO, International Intergovernmental Organizations Granted Observer Status to WTO Bodies, https://www.wto.org/english/thewto_e/igo_obs_e.htm.
WHO Framework Convention on Tobacco Control (FCTC), World Health Assembly Res. 56.1, 21 May 2003, in force 27 February 2005, 42 ILM (2003) 518.
See for instance, WTO, Amendment of the TRIPS Agreement: Decision of 6 December 2005, WTO Doc. WT/L/641, 8 December 2005, Protocol Amending the TRIPS Agreement, in force since 23 January 2017.
Jorge Viñuales, ‘Seven Ways of Escaping a Rule: Of Exceptions and Their Avatars in International Law’, in Lorand Bartels and Federica Paddeu (eds), Exceptions in International Law (Oxford: OUP 2017) Chapter 5.
General Agreement on Tariffs and Trade, Agreement Establishing the World Trade Organization, Annex 1A, adopted 15 April 1994, entered into force 1 January 1995, 1867 UNTS 187, Article XX.
Gabrielle Marceau, ‘A Call for Coherence in International Law: Praises for the Prohibition against Clinical Isolation in WTO Dispute Settlement’ (1999) 33 JWT 87–152.
Oisin Suttle, ‘What Sorts of Things are Public Morals? A Liberal Cosmopolitan Approach to Art XX GATT’ (2017) 80 Modern LR 569–599, 572.
Viñuales, ‘Seven Ways of Escaping a Rule’, 10
Thailand—Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/AB/R, Appellate Body Report, 17 June 2011, para. 173.
United States—Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, Appellate Body Report, 20 May 1996, at 22.
Christian Riffe, ‘Chapeau: Stringent Threshold or Good Faith Requirement’ (2018) 45 Legal Issues of Economic Integration 141–176, at 144.
AB Report, US—Gasoline, at 22, 25. AB Report, US—Shrimp, paras 158–159 (noting that ‘the task of interpreting and applying the chapeau is … the delicate one of locating and marking out a line of equilibrium between the right of a Member to invoke an exception under Article XX and the rights of other Members under varying substantive provisions.’)
Juscelino Colares, ‘A Theory of WTO Adjudication: From Empirical Analysis to Biased Rule Development’ (2009) 42 Vanderbilt Journal of Transnational Law 383–439.
Van den Bossche, The Law and Policy of the World Trade Organization, 639.
Suttle, ‘What Sorts of Things are Public Morals?’ 576.
GATT Article XX(a).
United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April 2005, Panel Report, para. 6.465.
Id. para. 6.468.
Id. para. 6467.
European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, Reports of the Panel, 25 November 2013, WT/DS400/R, WT/DS401/R, para. 7.381; US—Gambling, Panel Report, para. 6.461.
EC—Seal Products, Panel Reports, para. 7.380.
Katie Sykes, Animal Welfare and International Trade Law: The Impact of the WTO Seal Case (Cheltenham, UK: Edward Elgar 2021) 12.
Ming Du, ‘Permitting Moral Imperialism? The Public Morals Exception to Free Trade at the Bar of the World Trade Organization’ (2016) 50 JWT 675–704.
EC—Seal Products, Panel Reports, para. 5.200.
Tamara Nachmani, ‘To Each His Own: the Case for Unilateral Determination of Public Morality under Article XX(a) of the GATT’ (2013) University of Toronto Faculty of LR 31–60, 38–39; Anne Peters, Animals in International Law (Leiden: Brill 2021) chapters 4 and 5.
Colombia—Measures Relating to the Importation of Textiles, Apparel, and Footwear, AB Report, adopted 22 June 2016, WT/DS/461/AB/R, para. 6.20.
EC—Seal Products, Panel Reports, 7.384.
United States—Section 337 of the Tariff Act of 1930, Panel Report, adopted 7 November 1989.
Steve Charnovitz, ‘The Moral Exception in Trade Policy’ (1998) 38 Virginia JIL 689–745.
United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Appellate Body Report, WT/DS285/AB/R, adopted 20 April 2005.
EC—Seal Products, Reports of the Panel, 25 November 2013; European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, Reports of the Appellate Body, 22 May 2014.
China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, Panel Report, 12 August 2009, WTO Doc WT/DS363/R.
Brazil—Certain Measures Concerning Taxation and Charges, Panel Report, WT/DS472/R, 30 August 2017; Brazil—Certain Measures concerning Taxation and Charges, AB Report, 13 December 2018.
Regulation (EC) 1007/2009 of the European Parliament and of the Council of 16 September 2009 on Trade in Seal Products, 2009 OJ (L. 286) 36.
Id. Article 3(1).
Id. Article 3(2)(b).
Id. Article 3(2)(a).
Id. preamble, point 14.
Xinjie Luan and Julien Chaisse, ‘Preliminary Comments on the WTO Seals Products Dispute: Traditional Hunting, Public Morals, and Technical Barriers to Trade’ (2011) 22 Colorado Journal of International Environmental Law & Policy 79–121 at 82.
CJEU, Inuit Tapirit Kanatami and Others v. Parliament and Council, Case C-583/11, Judgment, 3 September 2015.
‘Canada Calls for WTO Panel in Seal Dispute with EU’, 15 Bridges Weekly Trade News Digest, 18 February 2011.
General Agreement on Tariffs and Trade 1994, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 187.
Agreement on Technical Barriers to Trade, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1868 UNTS 120.
European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/R and WT/DS401/R, Reports of the Panel, 25 November 2013, 7.247.
Id.
Id. para. 7.2.
Id. paras 7.161 and 7.164.
Id. para. 7.141.
Id. para. 7.46.
Id. para. 7.4.
Id. para. 7.226.
Id. para. 7.248.
Id. paras 7.314–5.
European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/4, Request for the Establishment of a Panel by Canada, 14 February 2011.
See also European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/5, Request for the Establishment of a Panel by Norway, 15 March 2011.
See e.g. Robert Howse and Joanna Langille ‘Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Accept Trade Restrictions Justified by Non-instrumental Moral Values’ (2011) 37 Yale Journal of International Law 367–432 at 402.
European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, Appellate Body Report, adopted 5 April 2001, DSR 2001:VII.
EC—Seal Products, AB Report, para. 7.252.
Id. paras 7.253–4.
European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, Reports of the Panel, para. 7.136.
Id. para. 7.292.
Id. para. 7.263.
Id. para. 7.292.
Id. footnote 475.
Id. para. 7.317
Id. para. 8(2).
Id. para. 8(3)(a).
Id. para. 7.409.
Id. para. 7.409.
Id. para. 7.651.
European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, Reports of the Appellate Body, para. 5.339.
Id. paras 5.327–5.328.
Id. para. 6.1(d)(III).
China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, Panel Report, 12 August 2009, WTO Doc WT/DS363/R, para. 7.751.
Id.
Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted 20 October 2005, entered into force 18 March 2007, in UNESCO, Records of the General Conference, 33rd session, Paris, 3–21 October 2005, vol I, 83.
Id. para.7.751.
Id. para.7.752–3.
China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Products, Appellate Body Report, 21 December 2009, WTO Doc WT/DS363/AB/R, para.25.
China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, Panel Report, footnote 538.
Id. para. 7.913.
Brazil—Certain Measures Concerning Taxation and Charges, Panel Report, WT/DS472/R, 30 August 2017.
Henrik Andersen, ‘Protection of Non-Trade Values in WTO Appellate Body Jurisprudence: Exceptions, Economic Arguments, and Eluding Questions’ (2015) 18 JIEL 383–405, 383.
EC—Measures Affecting Asbestos and Asbestos-Containing Products, Appellate Body Report, WT/DS135/AB/R, 5 April 2001, para. 154.
Andersen, ‘Protection of Non-Trade Values in WTO Appellate Body Jurisprudence’ 383.
Ben Czapnik, ‘Moral Determinations in WTO Law: Lessons from the Seals Dispute’ (2022) 25 JIEL 390–408.
Id.
Julian Arato, Kathleen Claussen, and J. Benton Heath, ‘The Perils of Pandemic Exceptionalism’ (2020) 114 AJIL 627–636, 635.
Id.
Tomer Broude, ‘Mapping the Potential Interactions between UNESCO’s Intangible Cultural Heritage Regime and World Trade Law’, (2018) 25 International Journal of Cultural Property 419–448, 437.
Eva Johan and Anna Schebesta, ‘Religious Regulation Meets International Trade Law: Halal Measures, a Trade Obstacle? Evidence from the SPS and TBT Committees’ (2022) 25 JIEL 61–73.
Panel Report, Indonesia—Measures Concerning the Importation of Chicken Meat and Chicken Products, WT/DS484/R and Add.1, adopted 22 November 2017; Appellate Body Report, Indonesia—Importation of Horticultural Products, Animals and Animal Products, WT/DS477/AB/R, WT/DS478/AB/R, and Add.1, adopted 22 November 2017; and Indonesia—Measures Concerning the Importation of Bovine Meat, WT/DS506, Request for Consultations, 29 April 2016.
Haniff Ahamat and Nasarudin Abdul Rahman, ‘Halal Food, Market Access, and Exception to WTO Law: New Aspects Learned From Indonesia—Chicken Products’ (2018) 13 Asian Journal of WTO & International Health Law and Policy, 355–373, 365.
Compare with Australia—Certain Measures Concerning Trademarks, Geographical Indications, and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, Panel Reports, WT/DS435/R, and WT/DS441/R, adopted 29 June 2020, as upheld by AB Reports, WT/DS435/AB/R and WT/DS441/AB/R (noting that the complainants failed to demonstrate that proposed alternative measures would be less-trade-restrictive or would make an equivalent contribution to Australia’s legitimate public health objectives.).
Nicolás M. Perrone, Investment Treaties & the Legal Imagination—How Foreign Investors Play By their Own Rules (Oxford: OUP 2021) 206.
Simone Weil, La Personne et le Sacré [Écrits de Londres et Dernièes Lettres (Paris: Gallimard 1957)] (Paris: Editions Allia 2020) 57 (‘L’esprit de justice et de verité n’est pas autre chose qu’une certain espèce d’attention.’).
Valentina Vadi, ‘Inter-Civilizational Approaches to Investor-State Dispute Settlement’ (2021) 42 University of Pennsylvania Journal of International Law 737–97.
Perrone, Investment Treaties & the Legal Imagination, 206.
Rostam Neuwirth and Alexandr Svetlicinii, ‘The Economic Sanctions over the Ukraine Conflict and the WTO: “Catch-XXI” and the Revival of the Debate on Security Exceptions’ (2015) 49 JWT 891–914.
Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations [The Wealth of Nations] (London: W. Strahan and T. Cadell 1776), Book 4, Chapter 2.
Jackson, The World Trading System, 22.
Id.
Van den Bossche, The Law and Policy of the World Trade Organization, 664.
Julian Arato, Kathleen Claussen, and J. Benton Heath, ‘The Perils of Pandemic Exceptionalism’ (2020) 114 AJIL 627–636, 634.
See e.g. United States—Certain Measures on Steel and Aluminum Products, WT/DS548/19, Recourse to Article 25 of the DSU, 21 January 2022 (the parties decided to resort to arbitration).
Ji Yeong Yoo and Dukgeun Ahn, ‘Security Exceptions in the WTO System: Bridge or Bottle-Neck for Trade and Security?’ (2016) 19 JIEL 417–44, 418; Harlan Grant-Cohen, ‘Nations and Markets’ (2020) 23 JIEL 793–815, 815.
Arato, Claussen, and Heath, ‘The Perils of Pandemic Exceptionalism’ 634.
Id.
Qatar—Certain Measures Concerning Goods from the United Arab Emirates, WT/DS576/3; Saudi Arabia—Measures Concerning the Protection of Intellectual Property Rights, Communication from Qatar, WT/DS567/11, 25 April 2022 (notifying the DSU that it has agreed to terminate the dispute and that it will not seek the adoption of the Panel report dated 16 June 2020.)
See generally Tania Voon, ‘The Security Exception in WTO Law: Entering a New Era’ (2019) 113 AJIL Unbound 45–50.
Russia—Measures concerning Traffic in Transit, Panel Report, adopted on 29 April 2019, WT/DS512/7.
UN Charter Article 103.
US—Restrictions on Exports to Czechoslovakia, Contracting Parties Decision, 8 June 1949. GATT/CP.3/SR.22.
Roger Alford, ‘The Self-Judging WTO Security Exception’ (2011) Utah LR 697–759, 697.
William Kerr, ‘Loopholes, Legal Interpretations, and Game Playing: Whither the WTO Without the Spirit of the GATT?’ (2019) 20 Journal of International Law and Trade Policy 49–60, 55.
See generally Sabrina Urbinati, ‘Alcune Considerazioni sulle Ultime Attività del Consiglio di Sicurezza in Materia di Protezione del Patrimonio Culturale in Caso di Conflitto Armato’ in Elisa Baroncini (ed.) Tutela e Valorizzazione del Patrimonio Culturale Mondiale nel Diritto Internazionale (Bologna: Bononia University Press 2021) 195–210.
UN Security Council, Resolution 1483 (2003), para.7.
UN Security Council, Resolution 2199 (2015), para. 17 (deciding ‘that all Member States shall take appropriate steps to prevent the trade in Iraqui and Syrian cultural property and other items of archaeological, historical, cultural, rare scientific and religious importance illegally removed from Iraq since 6 August 1990 and from Syria since 15 March 2011, including by prohibiting cross-border trade in such items’.)
Id. para. 16.
UN Security Council, Resolution 2347 (2017) Maintenance of International Peace and Security, preamble.
Daniel Gervais, ‘Spiritual but Not Intellectual—The Protection of Sacred Intangible Traditional Knowledge’ (2003–2004) 11 Cardozo Journal of International and Comparative Law 633.
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 UNTS 299, 33 ILM 1197 (1994).
For a detailed commentary, see Carlos Correa, Trade Related Aspects of Intellectual Property Rights—A Commentary on the TRIPS Agreement, II edition (Oxford: OUP 2020); Daniel Gervais, The TRIPS Agreement: Drafting History and Analysis, V edition (London: Sweet & Maxwell 2021).
TRIPS Agreement Article 1.1.
Id.
Jerome H. Reichmann, ‘The TRIPS Agreement Comes of Age: Conflict or Cooperation with the Developing Countries’ (2000) 32 Case Western Reserve JIL 441–470, 441–43.
Roosemary Coombe, ‘Intellectual Property, Human Rights & Sovereignty: New Dilemmas in International Law Posed by the Recognition of Indigenous Knowledge and the Conservation of Biodiversity’ (1998) 59 Indiana Journal of Global Legal Studies 59–115.
Vincent Chiappetta, ‘The Desirability of Agreeing to Disagree: The WTO, TRIPS, International IPR Exhaustion and a Few Other Things’ (2000) 21 Michigan JIL 333–392, 376–377.
Michael Spence, ‘Which Intellectual Property Rights are Trade-Related?’, in Francesco Francioni and Tullio Scovazzi (eds), Environment, Human Rights, and International Trade (Oxford: Hart Publishing 2001) 263–85.
General Agreement on Tariffs and Trade, 30 October 1947, 55 UNTS 194, Article XX(d) (‘Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: … (d) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement, including those relating to … the protection of patents, trade marks and copyrights, and the prevention of deceptive practices.’).
José E. Alvarez, ‘The WTO as Linkage Machine’ (2002) 96 AJIL 146–158, 147.
Rochelle Dreyfuss and Susy Frankel, ‘From Incentive to Commodity to Asset: How International Law is Reconceptualizing Intellectual Property’ (2015) 36 Michigan JIL 557–602, 560.
See for example, TRIPS Agreement, Articles 7 and 8.
Valentina Vadi, ‘Towards a New Dialectics—Pharmaceutical Patents, Public Health, and Foreign Direct Investments’ (2015) 5 New York Journal of Intellectual Property and Entertainment Law 113–195.
Michael Woods, ‘Food for Thought: The Biopiracy of Jasmine and Basmati Rice’ (2002–2003) 13 Albany Law Journal of Science and Technology 123–137, 123.
TRIPS Agreement Article 9.2 (‘Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.’).
Paul Allan David, ‘Intellectual Property Institutions and the Panda’s Thumb’, in Mitchell Wallerstein, Mary Ellen Mogee, and Roberta Schoen (eds), Global Dimensions of Intellectual Property Rights in Science and Technology (Washington DC: National Academy Press 1993) 19–64, 28.
Id. 42; Calixto Salomão Filho, ‘Contemporary IP Paradoxes’ (2022) 53 IIC 321–323.
Chiappetta, ‘The Desirability of Agreeing to Disagree’, 336.
Id. 352.
David, ‘Intellectual Property Institutions and the Panda’s Thumb’, 51
Ross King, La Cupola del Brunelleschi (Milan: Rizzoli 2001) 187–202.
David, ‘Intellectual Property Institutions and the Panda’s Thumb’, 45.
Valentina Vadi, ‘Trademark Protection, Public Health, and International Investment Law: Strains and Paradoxes’ (2009) 20 EJIL 773–803, 775.
Peter Drahos and John Braithwaite, Information Feudalism: Who Own the Knowledge Economy? (London: Earthscan 2002).
UN, Human Rights Council, Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed, Copyright Policy and the Right to Science and Culture, 24 December 2014, A HRC/28/57, para. 29 (‘The human right to protection of authorship is thus not simply a synonym for, or reference to, copyright protection, but a related concept against which copyright law should be judged. Protection of authorship as a human right requires in some ways more and in other ways less than what is currently found in the copyright laws of most countries.’).
Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, as revised at Paris on 24 July 1971 and amended in 1979, S. Treaty Doc. No. 99-27 (1986).
Van den Bossche, The Law and Policy of the World Trade Organization, 763.
See e.g. Japan—Measures Concerning Sound Recordings, Notification of Mutually Agreed Solution, IP/D/1/Add1WT/DS28/4, 5 February 1997; Ireland—Measures Affecting the Grant of Copyright and Neighbouring Rights, Notification of Mutually Agreed Solution, WT/DS115, 13 September 2002; Greece—Enforcement of Intellectual Property Rights for Motion Pictures and Television Programmes, Notification of Mutually Agreed Solution, WT/DS125/1, 26 March 2003.
United States—Section 110(5) of the US Copyright Act, Panel Report, WT/DS160/R, adopted on 27 July 2000.
See Christophe Geiger, ‘Constitutionalising Intellectual Property Law? The Influence of Fundamental Rights on Intellectual Property in the European Union’ (2006) 37 IIC International Review of Intellectual Property and Competition Law 351; Daniel Gervais, ‘The Changing Landscape of International Intellectual Property’, in Christopher Heath and Anselm Kamperman Sanders (eds), Intellectual Property and Free Trade Agreements (Oxford: Hart Publishing 2007) chapter 3.
Berne Convention Article 9(2) (reproduction in certain special cases), 10 (quotations and use of works by way of illustration for teaching purposes), 10bis (reproduction of newspaper for the purpose of reporting current events), and 11bis(3) (ephemeral recordings for broadcasting purposes).
Geiger, ‘Constitutionalising Intellectual Property Law?’ 374.
Id.
Gervais, ‘The Changing Landscape of International Intellectual Property’, para. 5.
Jakob Cornides, ‘Human Rights and Intellectual Property, Conflict or Convergence?’ (2004) 7 Journal of World Intellectual Property 135–167, 143.
Human Rights Council, Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed, Copyright Policy and the Right to Science and Culture, para. 61.
Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled, done at Marrakesh on 27 June 2013, in force September 2016.
Australia—Certain Measures Concerning Trademarks, Geographical Indications, and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WT/DS467/23, Panel Report adopted on 27 August 2018.
WHO Framework Convention on Tobacco Control (FCTC), adopted on 21 May 2003, in force on 27 February 2005, 42 ILM (2003) 518.
Kal Raustiala and Stephen Munzer, ‘The Global Struggle over Geographical Indications’ (2007) 18 EJIL 337–365, 365.
Riccardo Crescenzi, Fabrizio de Filippis, Mara Giua, and Cristina Vaquero-Piñeiro, ‘Geographical Indications and Local Development: the Strength of Territorial Embeddedness’ (2022) 56 Regional Studies 381–393, 382.
TRIPS Agreement Article 22.
Raustiala and Munzer, ‘The Global Struggle over Geographical Indications’, 342.
TRIPS Agreement Article 22.2.
TRIPS Agreement Article 23.
EC—Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, Panel Report, WT/DS290/R, 15 March 2005.
TRIPS Agreement Article 24.6.
TRIPS Agreement Article 24.1.
Raustiala and Munzer, ‘The Global Struggle over Geographical Indications’, 337.
Id. 339.
Dev Gangjee, ‘Geographical Indications and Cultural Rights: The Intangible Cultural Heritage Connection?’ in Christophe Geiger (ed.), Research Handbook on Human Rights and Intellectual Property (Cheltenham: Edward Elgar 2015).
Tomer Broude, ‘A Diet Too Far? Intangible Cultural Heritage, Cultural Diversity, and Culinary Practices’ in Irene Calboli and Srividhya Ragavan (eds), Diversity in Intellectual Property Law—Identities, Interests, and Intersections (Cambridge: CUP 2015) 472–493, 487.
Andrea Borghini, ‘Geographical Indications, Food, and Culture’, in Paul Thompson and David Kaplan (eds), Encyclopedia of Food and Agricultural Ethics (Heidelberg: Springer 2014) 1118.
Judgment of the General Court of 23 April 2018, CRM Srl v. European Commission, ECLI:EU:T:2018:208 (upholding the GI on the basis of the reputational link). For commentary, see Dev S. Gangjee, ‘From Geography to History: Geographical Indications and the Reputational Link’ in Irene Calboli and Wee Ng-Loy (eds), Geographical Indications at the Crossroads of Trade, Development, and Culture: Focus on Asia-Pacific (Cambridge: CUP 2017) 36–60.
Crescenzi, de Filippis, Giua, and Vaquero-Piñeiro, ‘Geographical Indications and Local Development’, 381.
Id. 383.
Irene Calboli, ‘Geographical Indications between Trade, Development, Culture and Marketing: Framing a Fair(er) System of Protection in the Global Economy?’ in Irene Calboli and wee Loon-Ng-Loy (eds), Geographical Indications at the Crossroads of Trade, Development, and Culture (New York: CUP 2017) 3–35, 18.
Crescenzi, de Filippis, Giua, and Vaquero-Piñeiro, ‘Geographical Indications and Local Development’, 383.
UNESCO, World Heritage Convention, Coffee Cultural Landscape of Colombia.
UNESCO, World Heritage Convention, Champagne Hillsides, Houses, and Cellars.
UNESCO, World Heritage Convention, The Climats, Terroirs of Burgundy.
UNESCO, World Heritage Convention, Tokaj Wine Region Historical Cultural Landscape (Hungary); Vineyard Landscape of Piedmont: Langhe-Roero and Monferrato (Italy); Le Colline del Prosecco di Conegliano e Valdobbiadene (Italy); Agave Landscape and Ancient Industrial Facilities of Tequila (Mexico); Alto Douro Wine Region (Portugal); Lavaux, Vineyard Terraces (Switzerland).
Food and Agriculture Organization, Statistical Yearbook—World Food and Agriculture (Rome: FAO 2019).
Id.
African Union, Department of Rural Economy and Agriculture, Continental Strategy for Geographical Indications in Africa 2018–2023.
Kaiko Shimura, ‘How to Cut the Cheese: Homonymous Names of Registered Geographic Indicators of Foodstuffs in Regulation 510/2006’ (2010) Boston College International & Comparative LR 129–151.
Crescenzi, de Filippis, Giua, and Vaquero-Piñeiro, ‘Geographical Indications and Local Development’, 387.
Valentina Vadi, ‘Intangible Cultural Heritage and Trade’, in Charlotte Waelde, Charlotte Cummings, Mathilde Parvis, and Helena Enright (eds), Research Handbook on Contemporary Intangible Cultural Heritage (Cheltenham: Edward Elgar 2018) 398–415, 398–9.
Id.
Sarah Bowen, ‘Embedding Local Places in Global Spaces: Geographical Indications as a Territorial Development Strategy’ (2010) 75 Rural Sociology 209–243.
Food and Agriculture Organization, Strengthening Sustainable Food Systems through Geographical Indications (FAO: Rome 2018).
WTO Committee on Technical Barrier to Trade, Minutes of the Meeting of 27–28 November 2012, G/TBT/M/58, 6 February 2013, para. 2.53.
Devorah Lauter, ‘French Winemakers concerned over “Chateau” Change’, The Telegraph, 16 September 2012.
Edward Cody, ‘An American Chateau? French Winemakers Say No’, Washington Post, 23 September 2012.
Id.
Id.
Japan—Customs Duties, Taxes, and Labelling Practices on Imported Wines and Alcoholic Beverages, L/6216, adopted 10 November 1987.
Tania Voon, ‘Geographical Indications, Culture, and the WTO’ in Benedetta Ubertazzi and Esther Muñiz Espada (eds), Le Indicazioni di Qualità negli Alimenti—Diritto Internazionale ed Europeo (Turin: Giuffrè 2009) 300–311, 307–8.
United States Trade Representative, 2022 Special 301 Report, 27.
Calboli, ‘Geographical Indications between Trade, Development, Culture and Marketing’, 13–14.
WTO, General Council Trade Negotiations Committee Council for Trade-Related Aspects of Intellectual Property Rights Special Session, Geographical Indications—Communication from the European Communities, T/GC/W/547, TN/C/W/26, TN/IP/W/11, 14 June 2005.
WTO, Council for Trade-Related Aspects of Intellectual Property Rights Special Session, Proposed Draft TRIPS Council Decision on the Establishment of a Multilateral System of Notification and Registration of Geographical Indications for Wines and Spirits, Submission by Argentina, Australia, Canada, Chile, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Israel, Japan, Korea, Mexico, New Zealand, Nicaragua, Paraguay, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, South Africa, and the United States, TN/IP/W/10/Rev.4, 31 March 2011.
WTO, General Council Trade Negotiations Committee, Issues Related to the Extension of the Protection of Geographical Indications Provided for in Article 23 of the TRIPS Agreement to Products Other than Wines and Spirits and those related to the Relationship between the TRIPS Agreement and the Convention on Biological Diversity, Report by the Director-General, WT/GC/W/591, TN/C/W/50, 9 June 2008.
TRIPS Agreement Article 23.
WTO, General Council Trade Negotiations Committee, Issues Related to the Extension of the Protection of Geographical Indications, paras 2–3.
Enrico Bonadio, ‘Why Europe and the US are Locked in a Food Fight over TTIP’, The Conversation, 7 August 2015, <http://theconversation.com/why-europe-and-the-us-are-locked-in-a-food-fight-over-ttip-45279>.
Calboli, ‘Geographical Indications between Trade, Development, Culture and Marketing’, 34.
Comprehensive Trade and Economic Agreement, Canada–European Union, Consolidated CETA Text, Chapter 22, Article 7, 26 September 2014.
EU–China Agreement Protecting Geographical Indications, in force 1 March 2021, available at https://ec.europa.eu.
Calboli, ‘Geographical Indications between Trade, Development, Culture and Marketing’, 4.
Sumathi Subbiah, ‘Reaping What They Sow: The Basmati Rice Controversy and Strategies for Protecting Traditional Knowledge’ (2004) 27 Boston College International & Comparative LR 529–559, 529.
Valentina Vadi, ‘Intangible Heritage, Traditional Medicine, and Knowledge Governance’ (2007) 2 Journal of Intellectual Property Law and Practice 682–692, 682.
Coenraad Visser, ‘Culture, Traditional Knowledge, and Trademarks: A View from the South’, in Graeme B. Dinwoodies and Mark D. Janis (eds), Trademark Law and Theory—A Handbook of Contemporary Research (Cheltenham: Edward Elgar 2008) 464–478,
Convention on Biological Diversity, signed on 5 June 1992, 1760 UNTS 69, Article 8(j).
Visser, ‘Culture, Traditional Knowledge, and Trademarks’, 464–5.
UNDRIP Article 31. See Martin Papillon, Jean Leclair, and Dominique Leydet, ‘Free, Prior, and Informed Consent: Between Legal Ambiguity and Political Agency’ (2020) 27 International Journal on Minority and Group Rights 223–232.
Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, open for signature on 2 February 2011, in force on 12 October 2014.
Id. Article 5(5).
Convention for the Safeguarding of Intangible Cultural Heritage (CSICH), Paris 17 November 2003, UNESCO Doc. MISC/2003/CLT/CH/14, in force in 2006.
CSICH Article 2(1).
See generally Vandana Shiva, Biopiracy: The Plunder of Nature and Knowledge (Boston: South End Press 1997).
Subbiah, ‘Reaping What They Sow’, 537.
Milpurrurru v Indofurn (Pty) Ltd (1993) 30 IPR 209; Yumbulul v Reserve Bank of Australia (1991) 21IPR 481; and Bulun Bulun & Anor v. R&T Textiles Pty Ltd (1998) 3(4) AILR 547.
Susan Lobo, ‘The Fabric of Life: Repatriating the Sacred Coroma Textiles’ (1991) 40 Cultural Survival Quarterly.
Earl Gray, ‘Maori Culture and Trade Mark Law in New Zealand’, in Christopher Heath and Anselm Kamperman Sanders (eds), New Frontiers of Intellectual Property Law (Oxford: Hart Publishing 2005) 71–95, 79–82.
Subbiah, ‘Reaping What They Sow’, 539.
Vadi, ‘Intangible Heritage, Traditional Medicine, and Knowledge Governance’, 685.
Subbiah, ‘Reaping What They Sow’, 539.
Vadi, ‘Intangible Heritage, Traditional Medicine, and Knowledge Governance’, 685.
EPO Boards of Appeals T 0543/04 Appetite Suppressant/ICSIR [2005], at 6.
Subbiah, ‘Reaping What They Sow’, 543.
Id.
Stephen Gudeman, ‘Sketches, Qualms, and Other Thoughts on Intellectual Property Rights’ in Stephen Brush and Doreen Stabinsky (eds), Indigenous Peoples and Intellectual Property Rights (Washington DC: Island Press 1996) 102–121, 102–3.
Fulvio Mazzocchi, ‘Western Science and Traditional Knowledge’ (2006) EMBO Reports 463–466, 464.
Visser, ‘Culture, Traditional Knowledge, and Trademarks’, 467.
Vadi, ‘Intangible Heritage, Traditional Medicine and Knowledge Governance’, 682.
WTO General Council, Trade Negotiations Committee, Issues Related to the Extension of the Protection of Geographical Indications Provided for in Article 23 of the TRIPS Agreement to Products other than Wines and Spirits and those Related to the Relationship Between the TRIPS Agreement and the Convention on Biological Diversity: Report by the Director General, Pascal Lamy, WT/GC/W/633, TN/C/W/61, 21 April 2011, para. 27.
Article 29.1 of TRIP s provides that the applicant ‘shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor’.
WTO, Trade Negotiations Committee, Draft Modalities for TRIPS Related Issues, TN/C/W/52, 19 July 2008.
Art 16(5) CBD states: ‘The Contracting Parties, recognizing that patent and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objective.’
Thomas Cottier and Marion Panizzon, ‘Legal Perspectives on Traditional Knowledge: The Case for Intellectual Property Protection’ (2004) 7 JIEL 371–399, 387.
Rosemary Coombe, ‘Intellectual Property, Human Rights, and Sovereignty: New Dilemmas in International Law Posed the Recognition of Indigenous Knowledge and the Conservation of Biodiversity’ (1998) 6 Indiana Journal of Global Legal Studies 59–115, 86 –87.
Susy Frankel, ‘Trademarks, Traditional Knowledge, and Cultural Intellectual Property’ in Graeme Dinwoodie and Mark Janis (eds), Trademark Law and Theory—A Handbook of Contemporary Research (Cheltenham: Edward Elgar 2008) 445–463, 445.
Id. 437.
Raustiala and Munzer, ‘The Global Struggle over Geographical Indications’, 345–6.
Frankel, ‘Trademarks, Traditional Knowledge, and Cultural Intellectual Property’, 452
Id.
Francis Bacon, Advancement of Learning [London 1605] Book II, Chapter ii, I.
Mazzocchi, ‘Western Science and Traditional Knowledge’, 465.
Gurdial Singh Nijar, ‘Traditional Knowledge Systems, International Law, and National Challenges: Marginalization or Emancipation?’ (2013) 24 EJIL 1205–1221, 1205.
Frankel, ‘Trademarks, Traditional Knowledge, and Cultural Intellectual Property’, 463.
Nijar, ‘Traditional Knowledge Systems, International Law, and National Challenges’, 1027.
Mazzocchi, ‘Western Science and Traditional Knowledge’, 464.
Id. 465.
Nijar, ‘Traditional Knowledge Systems, International Law, and National Challenges’, 1205.
Mazzocchi, ‘Western Science and Traditional Knowledge’, 464.
Gray, ‘Maori Culture and Trade Mark Law in New Zealand’, 74.
Id.
Id. 86.
Johanna Gibson, ‘Knowledge and Other Values—Traditional Knowledge and the Limitations for Traditional Knowledge’, in Guido Westkam (ed.), Emerging Issues in Intellectual Property—Trade, Technology, and Market Freedom: Essays in Honour of Herchel Smith (Cheltenham: Edward Elgar 2007) 309–318, 315.
Tomer Broude, ‘Taking Trade and Culture Seriously: Geographical Indications and Cultural Protections in WTO Law’ (2005) 26 University of Pennsylvania JIEL 629.
Olivier De Schutter, ‘International Trade in Agriculture and the Right to Food’ in Olivier De Schutter and Kaitlin Cordes (eds), Accounting for Hunger (Oxford: Hart 2011) 137–191, 141.
Viviana Ferrario, ‘Learning from Agricultural Heritage?’ (2021) 13 Sustainability 8879–92.
Anna Lartey, Günter Hemrich, and Leslie Amoroso, ‘Influencing Food Environments for Healthy Diets’, in FAO, Influencing Food Environments for Healthy Diets (Rome: FAO 2016) 1–14, 5.
Broude, ‘Taking Trade and Culture Seriously’, 629.
Corinna Hawkes, ‘The Role of Foreign Direct Investment in the Nutrition Transition (2005) 8 Public Health Nutrition 357–365.
Broude, ‘Taking Trade and Culture Seriously’, 642.
Id.
General Comment No. 12, The Right to Adequate Food (Article 11), UN doc. E/C.12/1999/5. 12 May 1999, para. 8; General Comment No. 21, Right of Everyone to Take Part in Cultural Life (Article 15, para. 1(a) of the International Covenant on Economic, Social and Cultural Rights), UN doc. E/C.12/GC/21, 21 December 2009, para. 16(e).
Broude, ‘Taking Trade and Culture Seriously’, 643.
Giovanni Rebora, Culture of the Fork, Albert Sonnenfeld (trans.) (New York: Columbia University Press 2001) (quoting Fernand Braudel).
Wenonah Hauter, ‘The Limits of International Human Rights Law and the Role of Food Sovereignty in Protecting People from Further Trade Liberalization under the Doha Round Negotiations’ (2007) 40 Vanderbilt Journal of Transnational Law 1071–1098, 1071.
See generally Fiona Smith, Agriculture and the WTO: Towards a New Theory of International Agricultural Trade Regulation (Cheltenham: Edward Elgar 2009).
Id. 161.
UNESCO, Decision of the Intergovernmental Committee: 5.COM 6.30, <https://ich.unesco.org/en/decisions/5.COM/6.30>.
Broude, ‘Taking Trade and Culture Seriously’, 655.
Id.
Agreement on Agriculture, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 410.
Fiona Smith, ‘Indigenous Farmers’ Rights, International Agricultural Trade, and the WTO’ (2011) 2 Journal of Human Rights and the Environment 157–177, 159.
Id. 168.
Id. 159.
WTO Ministerial Conference, Nairobi Ministerial Decision on Export Competition, WT/MIN(15)/45, 19 December 2015.
Broude, ‘Taking Trade and Culture Seriously’, 629.
Panel Report, Spain—Tariff Treatment of Unroasted Coffee, L/5135, 11 June 1981, GATT BISD (1981).
Appellate Body Report, Japan—Taxes on Alcoholic Beverages, WT/DS58/AB/R; Appellate Body Report, Korea—Taxes on Alcoholic Beverages, WT/DS75/AB/R.
Appellate Body Report, Chile—Taxes on Alcoholic Beverages, WT/DS87/AB/R, 13 December 1997.
Broude, ‘Taking Trade and Culture Seriously’, 646.
Tania Voon, ‘Culture, Human Rights, and the WTO’ in Ana Filipa Vrdoljak (ed.), The Cultural Dimension of Human Rights Law (Oxford: OUP 2013) 1–15, 5.
Marsha Echols, ‘Food Saftey Regulation in the European Union and the United States: Different Cultures, Different Laws’ (1998) 4 Columbia Journal of European Law 525–544, 526.
Agreement on the Application of Sanitary and Phytosanitary Measures, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 493.
John Beghin, ‘The Protectionism of Food Safety Standards in International Agricultural Trade’ (2014) 1 Agricultural Policy Review 7–9, 7.
WTO Appellate Body Report, EC—Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998.
WTO Decision by the Arbitrators, European Communities—Measures Concerning Meat and Meat Products (Hormones)—Original complaint by the United States: Recourse to Arbitration by the European Communities under Article 22.6 of the DSU, WT/DS26/ARB, 12 July 1999.
Voon, ‘Culture, Human Rights, and the WTO’, 7.
WTO Panel Report, European Communities—Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R, circulated 29 September 2006, adopted 21 November 2006.
Smith, ‘Indigenous Farmers’ Rights, International Agricultural Trade, and the WTO,’ 176.
Id. 176.
Voon, ‘Culture, Human Rights, and the WTO’, 2.
Article XX(a) and (f) of the GATT.
Voon, ‘Geographical Indications, Culture, and the WTO’, 302.
Voon, ‘Culture, Human Rights, and the WTO’, 4.
Yuval Shany, ‘No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary’ (2009) 20 EJIL 73–91, 81.
See Joel P. Trachtman, ‘The Domain of WTO Dispute Resolution’ (1999) 40 Harvard International Law Journal 333–374, 333.
DSU Article 3(2).