China and the “culture and trade” debate: a holistic approach

ABSTRACT

Over the past century, the ‘culture and trade’ debate has constantly evolved, particularly in the wake of rapid and still accelerating technological and scientific advances. These changes, manifest in an increasing convergence of many new technologies and industries, meant that the strict separation of culture from trade by means, for instance, of general or special exceptions in international trade agreements, such as the 1947 General Agreement on Tariffs and Trade (GATT) or the 1988 Canada–United States Free Trade Agreement (CUSFTA), can no longer be sustained. It means that in light of the emergence of oxymoronic concepts like ‘the cultural and creative industries’, the debate can no longer be framed along binary modes of thinking that oppose the liberalization of international trade and the protection and promotion of the diversity of cultures. Instead a more holistic approach seems to be needed, which appears to coincide with the approach taken by the People’s Republic of China (PRC), which joined the WTO in 2001. The present paper examines the holistic approach by the PRC, which seeks to combine rather than separate culture and trade in its domestic, regional and global law and policymaking.

KEYWORDS:

• Culture and trade debate
• People’s Republic of China
• WTO
• UNESCO
• BRICS
• Belt and Road Initiative (BRI)

Acknowledgments

The author would like to thank the editor of this special issue for the initial incentive to write this article and Lilian Hanania Richieri as well as the two anonymous reviewers for their critical but constructive comments.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. WTO. 1996. Decision of the General Council on Conditions of Service applicable to the Staff of the WTO Secretariat of 7, 8 and 13 November 1996. WTO Doc. WT/L/197 (18 November 1996) (‘NOTING that the WTO is a sui generis organization established outside the United Nations system’).

2. See the 6th Five-Year Plan (1981–1985) [Italics added]. http://www.china.org.cn/‌english/‌MATERIAL/‌157619.htm.

3. Recital 7 of the Preamble of the Constitution of the People’s Republic of China (4 December 1982/last amended on 11 March 2018) [Italics added]. http://en.pkulaw.cn/‌display.‌aspx?cgid=311950&lib=law.

4. WTO. 2018. China – Certain Measures Concerning the Protection of Intellectual Property Rights (Request for Consultations by the United States). WT/DS542/1 (26 March 2018). For an earlier China copyright case, see WTO Panel Report. 2009. China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights. WT/DS 362/R (26 January 2009).

5. WTO. 2018. China – Certain Measures Concerning the Protection of Intellectual Property Rights (Request for Consultations by the United States). WT/DS542/1 (26 March 2018).

6. WTO. 2018. China – Certain Measures Concerning the Protection of Intellectual Property Rights (Request for Consultations by the United States). WT/DS542/8 (19 October 2018).

7. WTO. 2018. China – Certain Measures on the Transfer of Technology (Request for Consultations by the EU). WT/DS549/1 (6 June 2018).

8. WTO. 2018. China – Certain Measures on the Transfer of Technology (Request for Consultations by the EU). WT/DS549/1 (6 June 2018).

9. See WTO. 2018. United States – Tariff Measures on Certain Goods from China (Request for consultations by China). WT/DS543/1 (5 April 2018); WTO. 2018. United States – Certain Measures on Steel and Aluminium Products (Request for consultations by China). WT/DS544/1 (9 April 2018); WTO. 2018. United States – Safeguard Measure on Imports of Crystalline Silicon Photovoltaic Products (Request for consultations by China). WT/DS562/1 (16 August 2018); WTO. 2018. United States – Certain Measures Related to Renewable Energy (Request for consultations by China). WT/DS563/1 (16 August 2018); and WTO. 2018. United States – Tariff Measures on Certain Goods from China II (Request for consultations by China). WT/DS565/1 (27 August 2018).

10. See WTO. 2017. China – Subsidies to Producers of Primary Aluminium (Request of Consultations by the United States). WT/DS519/1 (17 January 2017); and WTO. 2018. China – Additional Duties on Certain Products from the United States (Request for consultations by the United States). WT/DS558/1 (19 July 2018).

11. The notified agreements include the following countries or regional economic integration organizations (REIOs): ASEAN; Asia Pacific Trade Agreement (APTA); Asia Pacific Trade Agreement (APTA) (Accession of China); Australia; Chile; Costa Rica; Hong Kong, China; Republic of Korea; Macao, China; New Zealand; Singapore; Iceland; Pakistan; Peru; and Switzerland. The three early announcements relate to The Cross-Straits Economic Cooperation Framework Agreement (ECFA), Norway and Moldova; see WTO. RTA Database. http://rtais.wto.org/‌UI/‌PublicSearchByMember‌Result.aspx?MemberCode‌=‌156&lang=‌1&redirect=1.

12. Article 1 of the Agreement between the Governments of the BRICS States on Cooperation in the Field of Culture Ufa, Russia (9 July 2015). http://en.brics2015.ru/‌load/381755.

Additional information

Funding

This work was supported by a Multi-Year-Research-Grant (MYRG) provided by the University of Macau [grant number MYRG2015-00222-FLL]

Notes on contributors

Rostam J. Neuwirth

Rostam J. Neuwirth is a professor of law at the University of Macau in Macau (China). He holds a Ph.D. degree from the European University Institute (EUI) in Florence, an LL.M. from the University of McGill in Montreal and a law degree from the Karl-Franzens University of Graz.