The UNESCO convention on cultural diversity and WTO law: A case study in fragmentation of international law

Journal of World Trade

Volumn 42, Issue 1, 2008, Pages 205-240

  Wouters, Jan ^a,b   De Meester, Bart ^c  

^a Institute for International Law and Leuven Centre for Global Governance Studies   (Belgium)

^b Linklaters ^*  (Belgium)

^c UNIVERSITY OF LEUVEN   (Belgium)

Author keywords

[No Author keywords available]

Indexed keywords

CONFLICT MANAGEMENT; CULTURAL RELATIONS; INTERNATIONAL LAW; TRADE AGREEMENT; TRADE RELATIONS; UNESCO; WORLD TRADE ORGANIZATION;

EID: 44349119294     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (247)

1. The literature on this subject abounds. See, among others, Canadian Council on International Law, Fragmentation: diversification and expansion of international law: proceedings of the 34th Annual Conference of the Canadian Council of International Law (Ottawa: Canadian Council on International Law, 2006)
2. M. Craven, Unity, Diversity and Fragmentation of International Law, Finnish Yearbook of International Law (2003), pp. 3-34
3. A. Del Vecchio, Giurisdizione internazionale e globalizzazione: i tribunali internazionali tra globalizzazione e frammentazione (Milan: Giuffrè 2003)
4. A. Fischer-Lescano and G. Teubner, "Regime-Collisions: the Vain Search for Legal Unity in the Fragmentation of Global Law", Michigan Journal of International Law (2004), pp. 999-1046
5. A. Gattini, "Un regard procédural sur la fragmentation du droit international", Revue générale de droit international public (2006), pp. 303-336
6. G. Hafner, Pros and Cons Ensuing from Fragmentation of International Law, Michigan Journal of International Law (2004), 849-863
7. R. Huese Vinaixa and K. Wellens (eds), L'influence des sources sur l'unité et la fragmentation du droit international: travail du séminaire tenu a Palma, (Brussels: Bruylant 2006)
8. M. Koskenniemi, Fragmentation of International Law? Postmodern Anxieties, Leiden Journal of International Law (2002), 553-579
9. J. Pauwelyn, Bridging Fragmentation and Unity: International Law as a Universe of Inter-Connected Islands, Michigan Journal of International Law (2004), 903-916
10. E.-U. Petersmann, Justice as Conflict Resolution: Proliferation, Fragmentation and Decentralisation of Dispute Settlement in International Trade Law, University of Pennsylvania Journal of International Economic Law (2006), 273-366
11. M. Prost and P. Kingsley Clark, Unity, Diversity and Fragmentation of International Law: How Much Does the Multiplication of International Organizations Really Matter?, Chinese Journal of International Law (2006), 641-370
12. P. Rao, Multiple International Judicial Forums: A Reflection of the Growing Strength of International Law or its Fragmentation, Michigan Journal of International Law (2004), 929-961
13. S. Salinas Alcega and C. Tirado Robles (eds), Adaptabilidad y fragmentacion del derecho internacional: la crisis da la sectorialización, (Zaragoza: Real Instituto de Estudios Europeos 1999)
14. B. Simma, Fragmentation in a Positive Light, Michigan Journal of International Law (2004), 849-863
15. T. Stephens, Multiple International Courts and the "Fragmentation of International Environmental Law, Australian Yearbook of International Law (2004), 227-271
16. T. Treves, "Judicial Law-Making in an Era of 'Proliferation' of International Courts and Tribunals: Development or Fragmentation of International Law?", in R. Wolfrum and V. Reuben (eds), Developments of International Law in Treaty Making (Berlin: Springer 2005), pp. 587-620; and
17. K. Wellens, Fragmentation of International Law and Establishing an Accountability Regime for International Organizations: the Role of the Judiciary in Closing the Gap, Michigan Journal of International Law (2004), 1159-1181.
18. Report of the Work of the Study Group of the International Law Commission, finalized by Martti Koskenniemi, A/CN.4/L.682, 18 July 2006.
19. Ibid., para. 484.
20. Ibid., para. 493.
21. Id.
22. Declaration on Cultural Diversity, adopted by the Committee of Ministers on 7 December 2000 at the 733rd meeting of the Ministers' Deputies; see .
23. UNESCO Universal Declaration on Cultural Diversity, Adopted by the 31st Session of the General Conference of UNESCO, Paris, 2 November 2001.
24. Convention on the Protection and Promotion of the Diversity of Cultural Expressions, done at Paris on 20 October 2005 (hereinafter "Convention"). 148 Members of UNESCO voted in favour of the Convention. There were four abstentions (Australia, Nicaragua, Honduras and Liberia) and two votes against (United States and Israel).
25. The "Composite Text" is to be found in: Preliminary Draft of a Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions, Composite Text and Consolidated Text prepared by the Chairperson of the Intergovernmental Meeting, resp. Appendix 1 and Appendix 2 to the (Second) Preliminary Report of the Director-General Containing Two Preliminary Drafts of a Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions, CLT/CPD/ 2005/CONF.203/6, 3 March 2005. Appendix 2 was only added later by Document 171 EX/INF.18, 21 April 2005. All documents are available at: .
26. On the third intergovernmental meeting of experts at the UNESCO headquarters in Paris from 25 May to 3 June 2005, it was decided to negotiate further on the basis of the "Consolidated Text" for the Convention (consolidating all previous amendments and proposals and opting for certain formulations that had the largest support during preceding negotiations) and not on the basis of the "Composite Text" (compiling all proposals and amendments, and leaving open different options for provisions). This was much to the dismay of the United States, which preferred to hold discussions on the "Composite Text", which left open weaker options for provisions. See the Oral Report of the Rapporteur, Arthur Wilczynski, at the Closing of the Third Meeting of Intergovernmental Experts, UNESCO 25 May-3 June 2005, p. 3. At the end of this intergovernmental meeting, a recommendation was made to the General Conference of UNESCO to take into consideration and adopt this text at its 33rd session in October 2005. See Recommendation by the Plenary at the 3rd Session of the Intergovernmental Meeting, 3 June 2005.
27. The WTO was established in 1994 by the Agreement Establishing the World Trade Organization, done at Marrakesh on 15 April 1994, UNTS No. 31874 (hereinafter "WTO Agreement"). The General Agreement on Tariffs and Trade (GATT), the General Agreement on Trade in Services (GATS) and the Agreement on Subsidies and Countervailing Measures (SCM Agreement) are annexed to this WTO Agreement. The question is thus to what extent the Convention may provide a "safe haven" for cultural policies that distort trade and ease the tensions that exist in the WTO on this issue. See I. Bernier, "Trade and Culture", in P. Macrory, A. Appleton and M. Plummer (eds), The World Trade Organization: Legal, Economic and Political Analyses (New York: Springer 2005), Vol. II, p.789; and
28. M. Hahn, A Clash of Cultures? The UNESCO Diversity Convention and International Trade Law, Journal of International Economic Law (2006), 539.
29. As note 7 above.
30. In particular Canada, France, Germany, Greece, Mexico, Monaco, Morocco and Senegal, supported by the French-speaking group of UNESCO.
31. Preliminary Study on the Technical and Legal Aspects Relating to the Desirability of a Standard-Setting Instrument on Cultural Diversity, 166 EX/28, Paris, 12 March 2003, para. 18.
32. Ibid., para. 23. Other options for the scope of the standard-setting instrument were dismissed. First, there was a proposal for a new comprehensive instrument on cultural rights. However, the UNESCO Secretariat noted that the wisdom of such specific instrument was under debate and finding a consensus at this time would be rather unlikely. A second option was an instrument on the status of the artist. According to the Secretariat, it would also most likely have failed to achieve consensus. Nonetheless, some of the aspects of the status of the artist could be addressed under a general instrument on cultural diversity. Finally, a new Protocol to the Florence Agreement on the Importation of Educational, Scientific and Cultural Materials (see note 38 below) was suggested, which would extend the scope of the latter convention to cultural services. Nonetheless, this would rein in cultural diversity excessively and be rather cumbersome given the variety of cultural goods and services that would have to be included.
33. General Conference of UNESCO, 32 C/Resolution 34 Desirability of Drawing up and International Standard-Setting Instrument on Cultural Diversity, CLT/CPD/2004/CONF.201/5, 17 October 2003.
34. See Article 3 Composite Text, as note 9 above.
35. Article 3 Convention.
36. Nevertheless, the concept of "cultural diversity" was especially developed to steer away from the earlier concept of "cultural exception", which was used in the WTO negotiations to achieve an exclusion of cultural goods from WTO principles and thus had a negative and protectionist connotation. See C. Beat Graber, The New UNESCO Convention on Cultural Diversity: A Counterbalance to the WTO?, Journal of International Economic Law (2006), 554-555.
37. (First) Preliminary Report of the Director-General on the Preliminary Draft Convention on the Protection of the Diversity of Cultural Contents and Expressions, CLT/CPD/2004/CONF.201/1, June 2004, para. 4. See also P. Sauvé, The WTO Doha round: what's at stake culturally, Quaderns del CAC (September-December 2002), 29.
38. Article 4.6 Convention.
39. Article 1 UNESCO Universal Declaration on Cultural Diversity (note 7 above), reaffirmed in the second preliminary consideration of the Convention. The comparison is drawn with biodiversity, since, according to the Universal Declaration, cultural diversity is essential for humankind, as biodiversity is for nature. The concept of "common heritage of mankind" emerged in 1967 when Ambassador Pardo from Malta pleaded in the United Nations General Assembly for an exploitation of the deep seabed resources in the general interest under supervision of an international body. The concept aims at preserving certain public goods for present and future generations (see Principle 6 of the Convention: Principle of sustainability of cultural development for the benefit of present and future generations). A governing mechanism regulates the access to these goods, their exploration and exploitation. States only have rights on the products of exploitation in accordance with provisions of the treaties that have been concluded with respect to these goods. Such has been done for the deep seabed and the moon and its natural resources. See Article 136 United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982, UNTS No. 31363 and Article 11.1 Agreement governing the activities of states on the moon and other celestial objects, done at New York on 5 December 1979, UNTS No. 23002. It is interesting that the concept is now used to address an "intangible" public good.
40. Article 4.1 Convention.
41. Fifth preliminary consideration of the Convention. See also C. Germann, Diversité culturelle à l'OMC et l'UNESCO, Revue Internationale de Droit Économique (2004), p. 331.
42. Article 4 UNESCO Universal Declaration on Cultural Diversity (note 7 above). This is stressed on several occasions in the Convention. See the first principle in Article 2 of the Convention: Principle of respect for human rights and fundamental freedoms.
43. The Independent Experts highlighted "the fact that 'cultural expression' goes beyond the notion of 'cultural goods and services', in that it assumes a relationship between the subject-creators and the addressees, which is an essential element of the Convention". See Report of the Second Meeting of Experts (category VI) on the Preliminary Draft of the Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions, CLT/CPD/2004/602/6, 14 May 2004, p. 6.
44. Article 4.2 Convention, It should be stressed that the version of this definition is not yet finalized and that the Intergovernmental Meeting of Experts proposes two options.
45. See the original language in Article 4.3 of the First Preliminary Draft of the Convention, annexed to the (First) Preliminary Report of the Director-General (note 20 above).
46. Report of the Second Meeting of Experts (category VI), as note 26 above p. 6.
47. This point is related to the specific nature of cultural goods and services, which we discuss in section III.A. below.
48. Objective 1(h) and Principle 2 Convention.
49. Objective 1(g) Convention.
50. Principle 7 (Principle of Access) Convention.
51. Objectives 1(b), (c), (d) and (e) Convention.
52. See the fourth preliminary consideration of the Convention and Article 2 UNESCO Universal Declaration on Cultural Diversity (note 7 above).
53. See also P. Sauvé and K. Steinfatt, "Towards Multilateral Rules on Trade and Culture: Protective Regulation or Efficient Protection?", in P. Sauvé (ed.), Trade Rules Behind Borders - Essays on Services, Investment and the New Trade Agenda (London: Cameron May 2003), Box 13.1, stating that "the value of culture lies to an important degree in its ability to inform democratic choices".
54. Principle 3 Convention.
55. See the Report of the Third Meeting of Experts (category VI) on the Preliminary Draft of the Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions, CLT/CPD/2004/603/5, 23 June 2004, p. 4.
56. Certainly, some aspects of trade in certain cultural goods were already addressed in another, older, UNESCO legal instrument: the Florence Agreement on the Importation of Educational, Scientific and Cultural Materials, done at Lake Success on 22 November 1950, UNTS No. 1734 and the annexed Nairobi Protocol, done at Nairobi on 26 November 1976, UNTS No. 20669. Under this Agreement, the Contracting Parties agreed not to levy customs duties or other taxes on certain imported cultural goods. The Convention at issue has a much broader scope.
57. Objectives 1(f), and 1(i) and Principle 4 of the Convention. UNESCO stressed the relationship between culture and development in the 1980s and the 1990s. Indeed, in 1986, the UN General Assembly had proclaimed the World Decade for Cultural Development (1988-1997) and, in 1991, it established the World Commission on Culture and Development (see UN General Assembly, World Commission on Culture and Development, A/Res./46/ 158, 19 December 1991). This Commission produced a key report Our Creative Diversity in 1995 (Paris: UNESCO, 1996). This report led to two "World Culture Reports", commissioned by UNESCO. These reports examined the consequences of globalization for cultural diversity. See Graber, as note 19 above, pp. 556-557.
58. Article 6.1 Convention.
59. Moreover, the negotiating Member States suggested "that the word 'rights' should be deleted from the title [on international cooperation] since international cooperation is more a matter of commitments than of rights." See (Second) Preliminary Report of the Director-General, as note 9 above, p. 29.
60. Those measures may impose screen quotas or licensing restrictions.
61. Article 6.2(b) Convention. In the corresponding article 6.2 (a) of the Composite Text, reference was explicitly made to "measures that reserve a certain space for domestic cultural goods and services". The text of the Convention is less explicit and more nuanced.
62. For a discussion of domestic support measures that are used in cultural industries, see M.E. Footer and C. Beat Graber, Trade Liberalization and Cultural Policy, Journal of International Economic Law (2000), 122-126.
63. Article 6.2(c) Convention. The provision explicitly refers to "domestic independent cultural industries".
64. Article 6.2(d) Convention. The Composite Text of the Convention stated that the parties may determine the nature, amount and beneficiaries of public financial aid. Even though this explicit language is deleted in the Convention, there is still no obligation in it to extend financial aid that is granted to certain cultural industries to other such industries (i.e., no most-favoured-nation obligation nor national treatment obligation). Nonetheless, such obligation can be included in "other international obligations" that have to be complied with. See below.
65. Article 6.2(g) Convention.
66. Ibid., Article 6.2(e) and (f).
67. It should be noted that this expression, which appeared in the Composite Text, is not used any more in the final text of the Convention. See below.
68. Article 8.1 Convention.
69. Ibid., Article 8.2.
70. Ibid., Article 7.1(a).
71. The issue is contentious, since states hesitate to accept a clear positive international obligation to treat certain (e.g., ethnic, religious or linguistic) minority groups differently from other citizens. Article 29 of the International Convention on Civil and Political Rights (ICCPR) and Article 30 of the Convention on the Rights of the Child only impose a negative obligation upon states not to prevent minorities to enjoy their own culture. Still, according to General Comment No. 23 of the Human Rights Committee, Article 29 of the ICCPR would impose a positive obligation upon states to take measures to protect the identity of minorities. (General Comment No. 23: The Rights of Minorities, UN Doc. CCPR/C/21/Rev.1/Add.5 (1994), para. 6.1). It has been observed that this mainly concerns the undoing of historical injustices against certain groups: see S. Joseph, J. Schulz and M. Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford: Oxford University Press 2004), p. 792; and
72. G. Pentassuglia, Minorities in International Law (Strasbourg: Council of Europe Publishing, 2002), p. 107. Article 15 of the International Convention on Economic, Social and Cultural Rights also recognizes the right of everyone to take part in cultural life. This provision imposes a positive obligation upon the states, but does not refer to the culture of specific groups.
73. Article 7.1(b) Convention.
74. Ibid., Article 7.2.
75. Article 7.3 Composite Text. Reference to intellectual property does not appear any more in this provision in the Convention. The importance of intellectual property protection for creators is only mentioned in the sixteenth preliminary consideration of the Convention. Also the provision that obliged the parties to avoid unwarranted appropriation of traditional and popular cultural contents and expressions (Article 7.4) was deleted in the final text of the Convention.
76. Article 10 Convention.
77. Ibid., Article 11.
78. Article 9 Convention requires parties to the Convention to designate a contact point responsible for information-sharing.
79. Article 8(b) Composite Text.
80. Article 8(a) Convention.
81. Ibid., Article 8.3.
82. Ibid., Article 17.
83. Ibid., Article 12.
84. Ibid., Articles 13 and 14. This obligation includes strengthening the cultural industries in developing countries, performing capacity building and technology transfer and providing financial support ( inter alia through the establishment of an International Fund for Cultural Diversity (see Article 18 Convention)). Partnerships between and within public and private sectors and non-profit organizations with the objective of enhancing the capacities of developing countries to protect and promote cultural diversity should be encouraged (Article 15).
85. Article 16 Convention. The provision states that this should be done "in accordance with their international obligations". Preferential treatment will thus have to comply with the relevant obligations in the WTO agreements.
86. Article 5.1 Convention.
87. Indeed, in Article 20 (relationship to other instruments) the Convention also refers to "other international obligations", which may include the WTO agreements. The practical meaning and implications of this provision is discussed further in section V.
88. It is said that no agreement - apart from that to disagree - could be reached between the US and the EU positions. See T.W. Chao, GATT's Cultural Exemption of Audiovisual Trade: the United States May Have Lost the Battle but Not the War, University of Pennsylvania Journal of International Economic Law (1996), 1128. The dispute appeared also before, in the GATT era, when the United States complained during the Tokyo Round Negotiations (1973-1979) about the subsidies of cinema and television by other states. See Footer and Graber, as note 44 above, 118. To be sure, the dispute on culture and trade is largely similar to other discussions on the linkages between the principle of trade liberalization and other societal values. Nonetheless, as De Witte notes, it is remarkable that, contrary to tensions between trade and environment or trade and human rights, this dispute does not run along the developing-developed country divide, but rather occurs within the group of industrialized countries itself.
89. See B. De Witte, "Trade in Culture: International Legal Reghnes and EU Constitutional Values", in J. Scott and G. De Burca (eds), The EU and the WTO: Legal and Constitutional Issues (Oxford: Hart, 2001), pp. 237-238.
90. For a discussion of the socio-philosophical antecedents of this dispute, and more specifically the works of the "Frankfurter Schule" and the Anglo-Saxon "political economy" approach to culture, see Footer and Graber, as note 44 above, at 117-118, with references.
91. Sauvé and Steinfatt, as note 35 above, at 326-327. Pleading for protection of domestic cultural industries against foreign competition would be "static", "content-oriented and backward-looking". With regard to the position of audiovisual and related services in GATS, the United States stated that, "access to international markets is necessary to help recoup production costs. Predictable and clearly defined trade rules will foster international exhibition and distribution opportunities and provide commercial benefits that audiovisual service providers must have to continue their artistic endeavours". See Communication from the United States, Audiovisual and Related Services, WTO Doc. S/CSS/W/21, 18 December 2000, para. 6. In response to the proposed Convention on Cultural Diversity, the United States noted: "Mounting trade barriers, including efforts to prevent the free flow of investment and knowledge, is not a valid way to promote cultural liberty or diversity since such measures reduce choices."
92. See "Cultural Imperialism or Free Flow of Ideas?", International Herald Tribune (3 February 2005), p. 2.
93. Article 2.7 Convention.
94. Article 1 (b) Convention. Nevertheless, this interaction has to take place "in a mutually beneficial manner".
95. The European Commission considered that culture should not be understood in a mere commercial sense, but "in the anthropologic and social sense, embracing all of which concurs to the identity and dignity of people". See European Commission, Communication from the Commission to the Council and the European Parliament, Towards an International Instrument on Cultural Diversity, COM (2003) 520 final, 27 August 2003. An interesting assessment of the nature of films is made by Germann, who describes the impact films may have (and have had) on the public perception of certain groups in society (e.g., Jews, Arabs, Africans, Chinese ...). Their nature is thus clearly not limited to being a tradable commodity. See Germann, as note 24 above, at 329.
96. There is only the - outdated - Article IV GATT allowing for screen quotas for cinematographic films (see below). Nonetheless, until now, the proponents of cultural diversity failed to achieve the inclusion of a clause on "cultural specificity" in GATT or GATS. See R.J. Neuwirth, The Cultural Industries and the Legacy of Article IV GATT: Rethinking the Relation of Culture and Trade in the Light of the New WTO Round (Florence: European University Institute, 2002), pp. 11 and 15-17.
97. Article 1(g) Convention.
98. See respectively Article 4.4, 4.3 and 4.2 Convention.
99. W.M. Shao, Is There no Business Like Show Business? Free Trade and Cultural Protectionism, Yale Journal of International Law (1995), 119.
100. Cultural products thus show one of the two characteristics of public goods: non-rivalry. (The other characteristic of public goods, non-excludability, is less applicable to cultural products since intellectual property protection makes it possible to bar people from freely using the cultural expression of a creator.) For a general discussion of the concept of public goods, see Cooter and T. Ulen, Law and Economics (Reading, MA: Addison-Wesley, 2000), p. 42; and
101. P.A. Samuelson, The Pure Theory of Public Expenditure, Review of Economics and Statistics (1954), 387-389.
102. Sauvé and Steinfatt, as note 35 above, at 330.
103. Germann, as note 24 above, at 328-329.
104. See, for instance, the recent dispute between the EU Commission and a number of Hollywood major studios, who had used their power to achieve MFN clauses in contracts with European pay-television broadcasters. These clauses obliged the broadcasters to grant the most favourable terms given to one Hollywood Study to all of them. The case was partially closed when six of the Majors withdraw their clauses. See PO/ Pay Television Film Output Agreements, COMP/38.427, 26 October 2004.
105. Article I GATT and Article II GATS. See W. Schwartz and S. Sykes, Towards a Positive Theory of the Most Favoured Nation Obligation and its Exceptions in the WTO/GATT System, International Review of Law and Economics (1996), 27-51; and
106. UNCTAD, Most-favoured-nation Treatment (New York: United Nations, 1999).
107. Article III GATT and Article XVII GATS. See G. Verhoosel, National Treatment and WTO Dispute Settlement (Oxford: Hart 2000).
108. Article XX(f) GATT. See also article 30 TEC and Article 2101.1 NAFTA.
109. Germann, as note 24 above, at 334. Dispute Settlement practice on this article is lacking. The disputes that may have addressed the provision have both been settled by mutually agreed solution. See Turkey - Taxation of Foreign Film Revenues, WT/DS43, mutually agreed solution on 14 July 1997 and Canada - Measures Affecting Film Distribution Services, WT/DS/117/1, 22 January 1998.
110. Neuwirth, as note 75 above, at 13.
111. Article VI GATT and the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade ("Anti-dumping Agreement") allow for the WTO Members to impose "countervailing duties" on products that are imported at less than their normal value, if these imports cause injury to the domestic market. Given their special characteristics (as note 78 above and accompanying text), the "normal value" of cultural products is often not easily determined. For a general discussion, see J. Czako, J. Human and J. Miranda, Handbook on Anti-dumping Investigations, (Geneva: WTO, 2003), pp. 110-120.
112. See also E. Vermulst and F. Graafsma, WTO Disputes: Anti-dumping, Subsidies and Safeguards (London: Cameron May, 2002).
113. Article XIX GATT and the Agreement on Safeguards set out the rules for safeguard action by WTO Members to protect a specific domestic industry from an unforeseen increase of imports of any product that is causing, or is likely to cause, serious injury to the industry. The major disadvantage of such measures is that they should, in principle, be applied in a non-discriminatory way and thus cannot be targeted to one country.
114. During the Uruguay Round, the European Union has argued for a cultural exception for audiovisual trade, which was not achieved. See Uruguay Round - Group of Negotiations on Services - Working Group on Audiovisual Services - Note of the Meeting on 5 and 18 October 1990, WTO Doc. MTN.GNS/AUD/2, 20 December 1990. The Doha Declaration launching the new trade round (Doha Round) did not contain any reference to cultural services. Nevertheless, there have been instigated some discussions on audiovisual services before the Council for Trade in Services. See the Communication of the United States, WTO Doc. S/CSS/W/21, 18 December 2000
115. the Communication of Switzerland, WTO Doc. S/CSS/W/74, 4 May 2001 and the Communication of Brazil, WTO Doc. S/CSS/W/99, 9 July 2001.
116. Germann, as note 24 above, at 336.
117. Note to Article XIV(a) GATS. This formulation leaves relatively large leeway for states. See D. Luff, Le droit de l'Organization Mondiale de Commerce: Analyse critique (Brussels: Bruylant, 2004), p. 657.
118. In the first and, until now, only case relating to Article XIV(a) GATS, the Panel noted that "'public order' refers to the preservation of the fundamental interests of a society, as reflected in public policy and law". Nevertheless, a WTO Member that relies on this provision to defend its measures will have to prove that his trade-restrictive measure was "necessary" to protect public order. This involves a "weighing and balancing" of (a) the importance of the interests that are protected; (b) the extent to which the measures contribute to achieve the end pursued; and (c) the respective trade impact of the measures. Complying with this test is often very difficult. See Panel Report, United States - Measures Affecting the Cross-border Supply of Gambling and Betting Services, WT/DS285/R (10 November 2004), paras 6.467, 6.475-6.477. On "weighing and balancing"
119. see also Appellate Body Report, Korea - Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R and WT/DS169/AB/R (10 January 2001), para. 178
120. and Appellate Body Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R (5 April 2001), para. 172.
121. Article VIII GATS.
122. Ibid., Article IX.
123. Instead, there should be held consultations with a Member whose industries are engaged in such practices. See Article IX GATS.
124. Article X GATS. For the latest state of play, see Working Party on GATS Rules - Report of the Meeting of 21 June 2006, WTO Doc. S/WPGR/M/56, 4 July 2006, paras 2-26. Nonetheless, some countries have included in their MFN exceptions special provisions allowing themselves to adopt trade defence measures. This has for instance been done by the EC in the audiovisual services sector. See WTO Doc. GATS/EL/31, 15 April 1994.
125. Article II.2 GATS.
126. Ibid., Article XVI.
127. Ibid., Article XVII.1.
128. For a summary of the number of commitments and MFN exceptions, see Audiovisual Services - Background Note by the Secretariat, WTO Doc. S/C/W/40, 15 June 1998, paras 24-31. On 30 June 2005, a few months before the Convention was concluded, the United States convinced several states to adopt a joint statement regarding audiovisual services in the session of the WTO Council for Trade in Services. A "great concern" was expressed over "efforts by some key participants in the negotiations to create an a priori exclusion for such an important sector". See Council for Trade in Services, Communication from Hong Kong, China, Mexico, The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, and United States, TN /S/W/49, 30 June 2005. The fact that the GATS may go less far in the liberalization of the sector of cultural (containing audiovisual) services than the GATT does for cultural goods, makes the distinction between goods and services crucial. Nevertheless, nowhere does the GATT define what a "good" is, nor does the GATS define what a "service" is. The GATS only defines "trade in services", by use of four modes of supply (see Article 1.2 GATS). The discussion of possible criteria goes beyond the scope of this contribution. For a discussion of possible criteria, see F. Smith and L. Woods, A Distinction without a Difference: Exploring the Boundary between Goods and Services in the World Trade Organization and the European Union, Columbia Journal of European Law (2005), 1-60.
129. See the Presentation of Abdulqawi A. Yusuf, Director of the Office of International Standards and Legal Affairs, UNESCO, Presentation on Possible Ways of Dealing with the Question of the Relationship between Successive Conventions Relating to the Same Subject Matter and Article 19 (Relationship to other instruments) of the Preliminary Draft Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions, UNESCO, 23 September 2004.
130. Article 6 Convention.
131. Preamble of the WTO Agreement, para. 3. Note that this is not an end in itself, but a tool to raise standards of living, ensure full employment, expanding production and trade, and allowing the optimal use of the world's resources. J. Croome, Guide to the Uruguay Round Agreements (The Hague: Kluwer, 1999), p. 3.
132. Article 6.2(e) Convention. See section II.A. above.
133. Article 8 and 17 Convention.
134. Article XVII GATS.
135. As far as market access commitments have been made.
136. Article 6(d) and (g) Convention.
137. Article III.8(b) GATT. This is an exception to the principle of national treatment.
138. Article 1.1(a)(1)(ii) SCM Agreement. A subsidy can be described as a cost to a government and a benefit to a recipient that is specific, in the sense that it must be granted to an enterprise, or industry, or group of enterprises or industries.
139. It has to be established that the latter goods would normally be subjected to the charges, thus that revenue is foregone that is "otherwise due". Appellate Body Report, United States - Tax Treatment of Foreign Sales Corporations, WT/DS108/AB/R, (24 February 2000), paras 88-92. Importantly, a subsidy that is exclusively granted to domestic industries is only exempted from the national treatment obligation (pursuant to Article III.8(b) GATT) if it involves direct government expenditure. In contrast, tax that is foregone by the state will qualify as a subsidy under the SCM Agreement, but will still have to comply with the national treatment obligation of Article III GATT?. Consequently, such subsidies cannot be limited to domestic industries. Appellate Body Report, Canada - Certain Measures Concerning Periodicals, WT/DS31/AB/R, (30 July 1997), 32-35.
140. See S. De Boer, "Trading Culture: The Canada-US Magazine Dispute", in J. Cameron and K. Campbell (eds), Dispute Resolution in the WTO (London: Cameron May, 1998), p. 246.
141. On the relation between Article III and the SCM Agreement, see Panel Report, Indonesia - Certain Measures Affecting the Automobile Industry, WT/DS54, 55, 59 and 64/R. (2 July 1998), paras 14.33-14.36, 14.39-14.40.
142. Article 3 SCM Agreement.
143. Ibid., Article 5.
144. These countervailing duties can be imposed on prohibited and actionable subsidies. Prohibited subsidies only have to be withdrawn if a panel believes that the subsidy scheme at hand is indeed prohibited. See Article 4.7 SCM Agreement.
145. For the latest state of play, see Working Party on GATS Rules, as note 97 above, paras 2-26.
146. Article XV.2 GATS.
147. Article 12(e) Convention.
148. See, for instance, Council of Europe, European Convention on Cinematographic Co-Production, done at Strasbourg on 2 October 1992, ETS No. 147.
149. Germann, as note 24 above, at 342.
150. Article 14 Convention.
151. At the request of the WTO Committee on Trade and Development, the WTO Secretariat has discussed all provisions on special and differential treatment in a note. See Implementation of Special and Differential Treatment Provisions in WTO Agreements and Decisions, note by the Secretariat, WTO Doc. WT/COMTD/W/77, 25 October 2000. Some of the provisions aim at increasing trade opportunities of developing countries, others safeguard their interests or provide flexibility, transitional time periods and technical assistance.
152. Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries, GATT Doc. 26S/203, 28 November 1979.
153. The Generalized System of Preferences was an initiative of the United Nations Conference on Trade and Development. See UNCTAD Res. 21(II), 26 March 1968.
154. Hence, developed countries cannot discriminate among developing countries. See Appellate Body Report, EC - Conditions for the granting of tariff preferences to developing countries, WT/DS246/AB/R (7 April 2004), para. 160. The enabling clause only provides for possible different treatment of a subcategory of developing countries: the least developed countries. See Article 2(d) enabling clause. 155 Yet, developing countries complain that they experience serious difficulties in participating in international trade in services. See, for instance, Council for Trade in Services - Report of the Meeting Held on 21 September 1999 - Note by the Secretariat, WTO Doc. S/C/M/39, 15 October 1999.
155. Part VIII SCM Agreement.
156. See Report of the International Law Commission, 56th session, General Assembly Official Records, Fifty-ninth Session, Supplement No. 10 (A/59/ 10), para. 303.
157. In legal literature, the principles of lex posterior and lex specialis are not considered to be rules of customary international law or general principles of law, but rather "maxims of interpretation" (see N. Kontou, The Termination and Revision of Treaties in the Light of New Customary International Law (Oxford: Clarendon, 1994), p. 142, with reference to G. Schwarzenberger, International Law as Applied by International Courts and Tribunals I (London: Stevens, 1957), pp. 472-473). Daillier and Pellet state that the rule of lex posterior, laid down in Article 30(3) of the Vienna Convention on the Law of Treaties, is a "règle de bon sens" (see N. Quoc Dinh, P. Daillier and A. Pellet, Droit international public (Paris: LGDJ, 1999), p. 269). The fact that the principle of lex posterior is not a rule of customary international law is also confirmed by Paolillo, who states that it is "une codification de certains principes acceptés depuis longtemps par la communauté internationale". Therefore, Article 30 would do nothing else but "refléter des principes généraux de droit international largement acceptés" (see F. Paolillo, "Article 30", in O. Corten and P. Klein (eds), Les Conventions de Vienne sur le droit des traités (Brussels: Bruylant, 2006), pp. 1257-1258.) However this may be, it seems safe to hold the principle of lex posterior applicable outside the strict scope of application of the Vienna Convention as a treaty. According to Aust, the fact that states are not parties to the Vienna Convention rarely means that states in negotiations refuse to rely on the principles in the Convention. Moreover, the International Court of Justice, as well as other international and national courts and tribunals "will take the Convention as its starting - and normally also finishing - point" (see A. Aust, Modern Treaty Law and Practice (Cambridge: Cambridge University Press, 2000), pp. 10-11). Vranes states that these principles are immanent in the legal system. In international law, the right to derogate and the related principle of lex posterior is inherent in the fundamental principle of state sovereignty which makes it possible for one state to create and modify law in interaction with other states.
158. See E. Vranes, Lex Superior, Lex Specialis, Lex Posterior - Zur Rechtsnatur der "Konfliktlösungsregeln", Zeitschrift für ausländisches und öffentliches Recht und Völkerrecht (2005), 391-405. The principle of lex specialis is not mentioned in the Vienna Convention (see note 131 above), but can also be applied as a "maxim of interpretation".
159. See the application of the lex specialis principle by the Permanent Court of International Justice in The Mavrommatis Palestine Concessions (Greece/United Kingdom), Jurisdiction, PCIJ, Ser. A, No. 2, pp. 30-31; and
160. by the International Court of Justice in Case Concerning Rights of Passage over Indian Territory (Portugal/India), Merits, ICJ Reports (1960), 6, para. 44. The International Tribunal for the Law of the Sea has recognized that "there is support in international law and in the legal systems of states for the application of a lex specialis that governs general provisions of an antecedent treaty or statute".
161. See ITLOS, Southern Bluefin Tuna Case (New Zealand/Japan; Australia/ Japan),Jurisdiction and Admissibility, 4 August 2000, p. 91, para. 52. On lex specialis
162. see also A. McNair, The Law of Treaties (Oxford: Oxford University Press, 1986), pp. 219-220; and
163. G. Fitzmaurice, "The Law and Procedure of the International Court of Justice 1951-4: Treaty Interpretation and Other Points", in British Yearbook of International Law (1957), pp. 236-238.
164. This was acknowledged in the run-up to the negotiation of the Convention by the Director of the Office of International Standards and Legal Affairs, A. Yusuf, who discussed the possible ways of dealing with the question on the relationship with other international rules. He stated that the non-inclusion of a provision on the relationship to other treaties is a first, albeit unlikely, possibility for dealing with the problem. See Yusuf, as note 102 above, para. 6.
165. Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969, UNTS No. 18232. The principle of lex specialis is not expressed as such in Article 30 VCLT. Yet, it is widely supported in doctrine. See I. Sinclair, The Vienna Convention on the Law of Treaties (Manchester: Manchester University Press, 1984), p. 96; and
166. G. Hafner, Pros and Cons Ensuing from Fragmentation of International Law, Michigan Journal of International Law (2004), 861.
167. M. Koskenniemi notes that this principle "has a long pedigree in international jurisprudence" and was already expressed by Grotius. See M. Koskenniemi, Fragmentation of International Law: The Function and Scope of the lex specialis Rule and the Question of "Self-contained Regimes": an Outline, p. 4, available at: (accessed 6 April 2007).
168. Sinclair, as note 131 above, at 97.
169. See, for an attempt to define the concept of "norm conflict" from the perspective of legal theory, E. Vranes, The Definition of "Norm Conflict" in International Law and Legal Theory, European Journal of International Law (2006), 395-418. Vranes argues that traditional definitions of "norm conflict" are too narrow, by limiting themselves to two obligations that cannot simultaneously be complied with. Such definitions would forget to include also conflicts between obligations and permissive norms (e.g., between the GATT obligation not to discriminate between imports of foreign goods and the Convention permission to adopt policies to protect cultural diversity). Vranes provides examples of WTO Dispute Settlement decisions that indeed applied such limited definition of conflict. The manner in which the concept of "norm conflict" is defined influences whether the principles on conflict of norms can be applied. Yet, obviously, this definition does not affect the way in which these principles are applied, which we will discuss further. In the subsequent discussion, we consider "norm conflict" also to include conflicts between obligations and permissive rules.
170. J. Pauwelyn, Conflict of Norms in Public International Law (Cambridge: Cambridge University Press, 2003), p. 165.
171. Sinclair, as note 131 above, at 97. Koskenniemi states: "Because there are no definite rules on the classification and description of particular situations, it is often possible to avoid the appearance of conflict by distinguishing the new case from the former in relation to its subject-matter." See Koskenniemi, as note 132 above, p. 6. See also Paolillo, as note 129 above, at 1263.
172. Sixteenth preliminary consideration and Article 4.3(c) of the Convention.
173. Fifth preliminary consideration and Articles 2.1 and 5.1 of the Convention.
174. Article 1(h) Convention.
175. Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law. Conclusions of the Work of the Study Group of the International Law Commission, A/CN.4/ L.702, 18 July 2006, p. 8.
176. The International Law Commission merely "took note" of the Report and its Conclusions in a Resolution at its 2911th meeting on 9 August 2006.
177. Certainly because the MFN exceptions will most likely expire at the end of 2005 and because there is an important pressure in the latest WTO trade negotiation round to further liberalize trade in services.
178. Since the will of the contracting parties to the treaties is decisive, conflict rules are only meant as a last resort when treaty interpretation has failed to reconcile the norms. See J.B. Mus, Conflicts Between Treaties in International Law, Netherlands International Law Review (1998), 217-219. It may indeed be possible to interpret treaties in a mutually supportive way: e.g., one can interpret the concept of "public order" in Article XIV(a) GATS as including measures that protect cultural diversity.
179. See note 93 above. In fact, it is said that it is "often difficult to distinguish between these two aspects [i.e., interpretation and establishment of priority] of the functioning of the i lex specialis maxim]".
180. See Report of the International Law Commission, as note 128 above, para. 304.
181. Pauwelyn, as note 135 above, at 370-372.
182. See Aust, as note 129 above, at 74 and 183. For an extensive discussion on the time of conclusion of treaties, see E.W. Vierdag, "The Time of the 'Conclusion' of a Multilateral Treaty: Article 30 of the Vienna Convention on the Law of Treaties and Related Provisions", British Yearbook of International Law (1988), pp. 75-111.
183. Sinclair, as note 131 above, at 98. One should of course always take into account the "good faith" obligation for signatories of a treaty, as, inter alia, laid down in Article 18 VCLT. The International Court of Justice noted that the principle of "good faith" is "one of the basic principles governing the creation and performance of legal obligations". However, it is "not in itself a source of obligation where none would otherwise exist". See Case Concerning Border and Cross-Border Armed Actions (Nicaragua /Honduras), Jurisdiction and Admissibility, ICJ Reports (1988), 69, para. 94.
184. See also E. Roucounas, Engagements Parallèles et Contradictoires, Rec. Cours (1987), VI, 36-37.
185. Pauwelyn, as note 135 above, at 373.
186. Article II.2 GATS. Yet, because the exact date of their expiration depends on negotiations and the Hong Kong Ministerial conference in December 2005 could not agree upon this expiration, these exemptions are still applicable. It is clear, however, that they will eventually expire, probably before the end of the current negotiation Round.
187. Pauwelyn, as note 135 above, at 406. Pauwelyn argues that they are part of a regulatory framework that was created on a certain moment, but continuously evolves because it is reaffirmed, implemented, amended and extended by dispute settlement, interpretation or accession of new parties. It would then not be appropriate to put a time-label on the treaties, which makes the application of lex posterior impossible. Ibid., at 378.
188. Article 30.4(b) VCLT.
189. J. Pauwelyn, as note 135 above, p. 409.
190. See the schedule of specific commitments of the EU and its Member States: classification 10.A.3) (CPC 9619), WTO Doc. GATS/SC/31, 15 April 1994. Note that France and Italy have reserved the right to adopt restrictions to "national treatment" in case of subsidies and other forms of direct and indirect support.
191. If the application of the lex posterior rule and the lex specialis rule result in incompatible solutions, the principle of lex posterior should prevail, since that would be the implicit will of the Parties. See Dinh et al., as note 129 above, at 270.
192. Article XVI.2 GATS.
193. Ibid., Article XVII.1.
194. See, e.g., Article 40 North American Agreement on Environmental Cooperation, done at Mexico City, Washington and Ottawa on 8, 9, 12 and 14 September 1993 (not affecting existing international environmental agreements)
195. Article 4 European Energy Charter Treaty, done at Lisbon on 17 December 1994, O.J. 1994, C37/244 (not affecting WTO Agreements)
196. Article 2.2 South Pacific Nuclear Free Zone Treaty, done at Roratonga on 6 August 1985, UNTS No. 24592 (not affecting the rights with regard to freedom of the seas)
197. Article 2 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, done at Geneva on 10 October 1980, UNTS No. 22495 (not detracting from obligations imposed under international humanitarian law)
198. Article 12 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, done at Vienna on 26 September 1986, UNTS No. 24643 (not affecting reciprocal rights and obligations of states parties under existing international agreements which relate to the matters covered by this Convention) and Article 3(a) Convention for the Safeguarding of the Intangible Cultural Heritage, done at Paris on 17 October 2003, UNESCO Doc. MISC/2003/CLT/CH/14 (not affecting the Convention on the Protection of the World Cultural and Natural Heritage of World Heritage properties).
199. See, e.g., Article 10 Tampere Convention on the Provision of Telecommunications Resources for Disaster Mitigation and Relief Operations, done at Tampere on 18 June 1998 and Article 90 UNCITRAL Convention on Contracts for the International Sale of Goods, done at Vienna on 11 April 1980, UNTS No. 25567.
200. See, e.g., Article 103 North American Free Trade Agreement, done at Washington, Ottawa and Mexico City on 17 December 1992, ILM (1993), p. 289 and Article 311.1 United Nations Convention on the Law of the Sea, as note 22 (prevailing over the Geneva Convention on the Law of the Sea).
201. The clause can never impose a new treaty upon third parties without their consent. See Article 34 VCLT and the remarks of the International Law Commission in D. Rausching, The Vienna Convention on the Law of Treaties, Traveaux Préparatoires (Frankfurt: Metzner 1978), p. 233.
202. See Article 22.1 Convention on Biological Diversity, done at Rio de Janeiro on 5 June 1992, UNTS No. 30619.
203. See, e.g., Article 2.2 WHO Framework Convention on Tobacco Control, done at Geneva on 21 May 2003, WHA Res. 56.1, 21 May 2003 (in no way affecting the right of parties to enter into bilateral or multilateral agreements, including regional or subregional agreements, on issues relevant or additional to the Convention and its protocols, provided that such agreements are compatible with their obligations under the Convention and its protocols.) 205 See Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya/United Kingdom), Order of 14 April 1992, ICJ Reports (1992), 3, paras 39 and 42.
204. Rausching, as note 159 above, at 233.
205. See, e.g., Article 311.3 United Nations Convention on the Law of the Sea, note 22 above (Two or more states parties may conclude agreements modifying or suspending the operation of provisions of this Convention, applicable solely to the relations between them, provided that such agreements do not relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of this Convention, and provided further that such agreements shall not affect the application of the basic principles embodied herein, and that the provisions of such agreements do not affect the enjoyment by other states parties of their rights or the performance of their obligations under this Convention)
206. Article 73.2 Vienna Convention on Consular Relations, done at Vienna on 24 April 1963, UNTS No. 8638 (later international agreements can be concluded if they confirm, supplement, extend or amplify the provisions of the Convention)
207. Article 20 Berne Convention for the protection of literary and artistic works, done at Paris on 24 July 1971, UNTS No. 11850 (later treaties prevail if they accord broader rights protection)
208. Article 12 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, done at Vienna on 26 September 1986, UNTS No. 24643 (stating that it is only subject to norms that are in accordance with the object and purpose of the particular Convention itself) and Article 19.8 Constitution of the International Labour Organization, done by the Peace Treaty of Versailles of 28 June 1919 (no impact on later agreements that grant more favourable conditions to workers).
209. Article 41 is a reflection of "general rules" with a customary law origin. See Dinh et al., as note 129 above, at 295.
210. See also the Dissenting Opinion of Judge Oda, Military and Paramilitary Activities in and against Nicaragua (Nicaragua/United States of America), Merits, ICJ Reports (1986), 212, para. 79.
211. Thus, state responsibility occurs vis-à-vis the parties that are not involved in the modifying agreement. See Mus, as note 143 above, at 225. Such clauses are especially relevant when the new treaties are concluded between only a few states that were parties to the earlier treaty. When all parties to the earlier treaty are also party to the new treaty, this can be seen as an implicit amendment of the earlier treaty. Consequently, the conflict clause has no relevance.
212. The WTO can give the right to the winning party in a dispute to impose trade sanctions upon the losing party in order to force the latter to remove its WTO-inconsistent measures. See Articles 21 and 22 of the Understanding on the Rules and Procedures Governing the Settlement of Disputes (DSU). 215 The Understanding on Rules and Procedures Governing the Settlement of Disputes is Annex 2 of the Marrakesh Agreement, as note 11 above.
213. See Articles 1.1, 7.1 and 11 DSU. The "Covered Agreements" are listed in Annex 1 of the DSU.
214. Appellate Body Report, United States - Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (20 May 1996), 17. According to Article 3.2 DSU, the dispute settlement system should clarify the provisions of the Agreements in accordance with the customary rules of interpretation of public international law.
215. Article 3.2 DSU.
216. Article 31.3 VCLT. The International Court of Justice has recognized repeatedly that Article 31 VCLT reflects customary international law. See Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya/ Chad), Judgment, ICJ Reports (1994), 21, para. 41
217. Case Concerning Oil Platforms (Islamic Republic of Iran/United States of America), Preliminary Objections, Judgment, ICJ Reports (1996) (II), 812, para. 23 and, specifically on Article 31.3, Case Concerning Kasikili/Sedudu Island, Judgment, ICJ Reports (1994), para. 48.
218. The fact that the International Law Commission decided to change the phrase "subsequent practice ... of all the parties" into "subsequent practice of ... the parties" does not mean that it is not necessary that all parties should have accepted the practice. It only meant to indicate that it was sufficient that the states had accepted the principles and that it is not essential that each and every state has explicitly followed the principles in practice. The adherence of the state to the principles that are laid down in a certain international instrument can be presumed by the absence of a reaction by this state. Compare M.K. Yasseen, L'interprétation des traités d'après la Convention de Vienne sur le droit des traités, Rec. Cours (1976), III, p. 49. Thus, only if a WTO Member has explicitly stated not to agree with the principles laid down in the Convention, it would be unacceptable to use the Convention as a tool for interpreting WTO provisions.
219. See GATT Panel Report, United States - Prohibition of Imports of Tuna and Tuna Products from Canada, 22 February 1982, BISD (1981), 29S/91; and
220. Panel Report, Canada - Patent Protection of Pharmaceutical Products, WT/DS114/R (17 March 2000), para. 4.31. This was later confirmed in Panel Report, European Communities - Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291, 292, 293/R (29 September 2006), paras 7.70-7.72. Some authors argue that, in certain cases, a non-WTO rule can be relevant, even if it is not binding for all WTO Members. This would be the case when the rule at hand expresses the "contemporary concerns of the community of nations". See Pauwelyn, as note 135 above, at 576.
221. See also M. Matsushita, T.J. Schoenbaum and P. Mavroidis, The World Trade Organization. Law, Practice and Policy (Oxford: Oxford University Press, 2004), pp. 69-72. Furthermore, a Report by a Study Group set up by the International Law Commission to examine the fragmentation of international law suggested that non-WTO rules should possibly be relied on as part of the context for interpretation if all parties in dispute are bound by this non-WTO rule (e.g., a treaty). It would thus not be necessary that it is binding for all WTO Members. According to the study, "although this creates the possibility of eventually divergent interpretations (depending on which states parties are also parties to the dispute), that would simply reflect the need to respect (inherently divergent) party will as elucidated by reference to those other treaties as well as the bilateralist character of most treaties underpinned by the practices regarding reservations, inter se modification and successive treaties" (see Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law. Report of the Work of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, A/ CN.4/L.682, 18 July 2006, para. 472). It should be noted, however, that this is a study commissioned by the ILC and not an ILC statement itelf. Still, leaving aside rules of jus cogens, it seems doubtful to us whether such a rule can be applied in a case against a WTO Member that has never, not even implicitly, approved it.
222. See UNESCO General Conference, 33rd Session, Paris 2005, Draft Report of Commission IV, 33C/84 Prov., 20 October 2005, Annex, p. 1.
223. EC - Measures Affecting the Approval and Marketing of Biotech Products, as note 174 above, para. 7.68.
224. Ibid., para. 7.92.
225. Ibid., para. 7.95.
226. Article 13.2 DSU.
227. The only exception concerns the IMF in a number of very specific cases: see Article XVI.2 GATT.
228. This has been approved by an independent group of experts that looked at the institutional challenges of the WTO. See The Future of the WTO. Addressing Institutional Challenges in the New Millennium. Report by the Consultative Board to the Director-General Supachai Panitchpakdi (Geneva: WTO, 2004), paras 167-168.
229. See T. Cottier, Trade and Human Rights: A Relationship to Discover, Journal of International Economic Law (2002), 111-132.
230. See the discussion of such a "liberal view" in A. Vandaele, International Labour Rights and the Social Clause: Friends or Foes? (London: Cameron May, 2005), para. 1117.
231. Recommendations and rulings of the WTO Dispute Settlement Body (thus also reports of panels and the Appellate Body) "cannot add to or diminish the rights and obligations provided in the covered agreements". See Article 3.2 DSU.
232. See 16th preliminary consideration and Article 4.3(c) of the Convention.
233. Convention on Biological Diversity, as note 160 above.
234. The only case of dispute settlement in which this Biodiversity Convention has played a role is the famous Shrimp Turtle dispute before the WTO. In this case the provisions of the Biodiversity Convention were used to interpret the phrase "exhaustible natural resources". See Appellate Body Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (12 October 1998), para. 130.
235. Article 27 Convention on Biological Diversity.
236. Article 25 Convention. The parties should first seek solution by negotiation, can request mediation by a third party, have recourse to arbitration or can submit the dispute to the International Court of Justice.
237. See, for instance, recitals 9 and 10 of the Preamble of the Cartagena Protocol on Biosafety done at Montreal on 29 January 2000, which on the one hand emphasize that the Protocol "shall not be interpreted as implying a change in the rights and obligations of a Party under any existing international agreements", while at the same time "understanding that the above recital is not intended to subordinate this Protocol to other international agreements".
238. See European Proposal for Article 19, 12 February 2005, unpublished, on file with authors.
239. See, e.g., Article XX (f) GATT, which provides an exception for restrictive measures imposed for the protection of national treasures of artistic, historic and archaeological value. It is very doubtful that the use of the Convention as a tool for interpreting this provision to define the ordinary meaning of "national treasures of artistic, historic and archaeological value", would extend this meaning to include also television programmes, films or books with a domestic content. Also with regard a second limited exception in the GATT, Article IV on cinematographic films, the Convention would probably not help to broaden its application. The ordinary meaning of cinematographic films could hardly include television programmes.
240. Article 20.1(b) Convention.
241. Ibid., Article 21.
242. The proposal tried to shift the focus of Article 20 (at that time Article 19 Composite Text) from a conflict clause towards a clause that emphasizes complementarity among the instruments, which is seen as a "third way". See Oral Report of the Second Session of the Intergovernmental Meeting of Experts on the Draft Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions, UNESCO, 31 January-11 February 2005, p. 8.
243. Ibid., p. 7.
244. During the negotiations a substantial number of states wished to avoid undue complication of institutional structures and to keep down the costs linked to the functioning of the bodies set up by the Convention. See (Second) Preliminary Report of the Director-General, as note 9 above, para. 26.
245. It is, of course, not possible to include in the Convention an obligation for the WTO bodies to consult the UNESCO. Much depends again upon the WTO's willingness to be cultural-sensitive. The decision-making organs of the WTO seem to be rather hesitant to engage in such consultation. When the Director-General of UNESCO asked for the WTO's views on the draft Convention, the first reaction of the Director-General of the WTO was "that the WTO was a Member-driven organization and, as such, any views or comments on the draft text should come from the membership rather than the Secretariat. The Director-General had offered to convey any views of WTO Members to the UNESCO and had noted that Members were also free to raise the matter in the appropriate bodies of the WTO". See Minutes of the Meeting of the General Council of 20 October 2004, WTO Doc. WT/GC/M/88, 11 November 2004, para. 64. The panels may have a more firm legal basis for consultation in Article 13.2 DSU, as note 171 above and accompanying text.
246. Article 22 Composite Text of the Convention.
247. Note that the Study Group appointed by the International Law Commission did not examine the institutional problems emerging from the fragmentation of international law. See Report of the International Law Commission, 54th session, General Assembly Official Records, 54th Session, Supplement No. 10 (A/57/10), para. It was considered that the institutions themselves best dealt with this issue. The ILC indeed does not want to act as a referee in the relationships between institutions. See ibid., para. 507.