The “Culture and Trade” Paradox Reloaded

Abstract

For a great variety of so-called non-trade issues, such as human rights, public health, the environment, or labour standards, the assumption expressed by the negotiators by way of general exceptions enshrined in trade agreements was that they are different from trade and commerce and, therefore, ought to remain outside the spectrum of international trade regulation. The same can be said about culture in general and various cultural concerns in particular. However, the case of culture appears to take a more privileged role, which is rooted in the comprehensive, cohesive, and dynamic nature of the concept as it was also recognized by the Preamble of the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. This means that culture, because it can be understood to form an amalgam of experiences and problems of social life, constitutes the most comprehensive approach in various attempts to successfully tackle the problems discussed in the course of the trade-linkage debate (Garcia, 1998a) — a debate addressing various individual “trade and […] problems” as outlined above with a view of realizing the reconciliation between their respective policy objectives (Garcia, 1998b; Lang, 2007; Trachtman, 1998, 2002). This means that, in recent years, “linkage” issues have not only moved from the periphery to the centre of the trade agenda (Dunoff, 1998, p. 347) but also that the “culture and trade” link has taken an increasingly important role among them (Stein, 2000, p. 314).

One would expect that unless we properly address the questions that lie at the foundation of our legal system, we will generate paradoxes and antinomies. Now that we know more precisely what these puzzles and contradictions are, we should be impelled to attack the basic jurisprudential questions with a greater sense of urgency. If we wish to avoid disabling contradictions, we must reach a deeper understanding of the legal premises that guide our thinking.

(Fletcher, 1985, p. 1292)