Originally uploaded at SSRN.

Abstract

On October 20, 2005, the General Conference of the United Nations Educational, Scientific and CulturalOrganization (UNESCO) adopted a treaty - by a vote of 148-2, with 4 abstentions - that legitimates domestic legal measures aimed at the protection of local producers of cultural activities, goods and services. Opposed by the United States and Israel, the Convention represents a major diplomatic victory for Canada and France - its principal proponents - and a major blow to Hollywood and the United States, audiovisual products being among America's most lucrative exports. Both Canada and France, like many countries around the world, have long maintained a range of cultural protectionist measures aimed at stemming the dominance of U.S. media - notably, Hollywood films - in their domestic markets. The Convention has been attacked as vague and susceptible to abuse, however, by U.S. officials arguing that it could serve as a pretext for infringements of speech and related human rights, and that it could destabilize the international trading system. Particularly troubling for the United States is a provision containing apparently contradictory language regarding theConvention's relationship to existing international legal obligations.

This article aims to identify the UNESCO Convention's legal and diplomatic significance. Starting with a brief look at competing conceptions of culture, the article then discusses cultural provisions in various traderegimes, UNESCO's history (including the United States' cool relationship with this UN body), as well as thenegotiation and drafting of the Convention itself. The article ultimately concludes that the UNESCOConvention will likely have minimal legal effect on existing trade obligations, but that it will have a significant diplomatic impact on future negotiations toward greater audiovisual liberalization under the WTO system - a major trade policy goal of the United States.

The efficacy of the UNESCO Convention as a means of resisting audiovisual trade liberalization will ultimately depend on the perceived normative legitimacy of the broader argument for the protection of cultural diversity through domestic protectionist measures. The final sections of the article address the trade and culture debate in these broader terms. Based on an examination of the media market, Hollywood's prevailing business model, and the deployment of human rights arguments and construction of trade rhetoric by U.S. trade negotiators and corporate interests, I argue that the burden remains squarely on the United States to demonstrate that the liberalization of trade in cultural products is in fact necessary or desirable.

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