Title

Taking 'Trade and Culture' Seriously: Geographical Indications and Cultural Protection in WTO Law

Abstract

The regulation of the relationship between international trade law and cultural protection is one of the challenges that the World Trade Organization (WTO) will be facing with greater intensity in the second decade of its existence. This paper approaches the problem as it is reflected in the current debate on Geographical Indications (GIs) for food and wine products in the WTO. It seeks to take 'trade and culture' seriously, looking not only at law's effects on trade but also on culture, and to examine the extent to which legal restrictions on international trade can in fact prevent the degradation of cultural diversity in a particular regulatory context.

The paper presents a positive theory of the law and economics of cultural protection through GIs and a discussion of the specific ways in which GIs, as sui generis international legal measures, are assumed to protect local traditions and cultural diversity (in addition to their economic and consumer protection roles). It then provides a detailed factual analysis based primarily on the experience of GI laws in the European Union, demonstrating that contrary to these theoretical beliefs, GIs have in fact proven incapable of providing cultural protection.

On the basis of this case-study the article then analyses three nascent or potential international legal mechanisms for the safeguarding of cultural diversity with implications for future WTO law: (i) new sui generis legal constructs in the WTO (e.g., traditional knowledge rights); (ii) the interpretative or legislative expansion of Articles XX(a) GATT and XIV(a) GATS to include a general cultural exception from WTO trade liberalization disciplines; and (iii) the adoption of the 2004 UNESCO Draft Convention on Cultural Diversity establishing a parallel international legal regime on cultural protection with potential conflicts with WTO law.

Disciplines

Intellectual Property Law | International Law | International Trade Law

Date of this Version

June 2005