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Maki Nishiumi

Maki Nishiumi [Profile]

International Law of Culture

Maki Nishiumi
Professor, Faculty of Law, Chuo University
Areas of Specialization: International law

1. Globalization and Culture

Globalization has promoted the free movement of people, objects, and capital while promoting cultural diffusion on a global scale. Today, we can enrich our lives by being exposed to the literature, music, art, theater, movies, and subcultures of various regions all around the world while living in Japan. However, there are many cases where cultural diffusion under globalization progresses in a way that is advantageous to cultures that are domineering. As a result, this can bring about global hegemony by a particular culture, cultural homogenization, and cultural isolation as a counteraction. These two sides of cultural exchange have produced two contrasting standpoints. The first is the standpoint from which free exchange among cultures is seen as desirable, as with other objects, services, and the like-in keeping with the theory of markets and capital-because free interaction among cultures enriches our lives (liberal theory). The other is the standpoint that cultural exchanges based only on the theory of markets and capital would lead to global hegemony by a particular culture, and thus uniformly impoverish other cultures around the world. This is the standpoint where it is stated that some restrictions must be made on cultural exchange in order to avoid such developments (restrictive theory). These two standpoints have actually been established for quite a long time now. What kinds of effects on international laws concerning culture have these standpoints had up to now? And what kinds of issues have been discovered in the process?

2. The Effects of These Standpoints on the GATT / WTO

After World War 1, European nations introduced various quotas to protect their film industries from being monopolized by American movies. The General Agreement on Tariffs and Trade (GATT) also recognized quotas on the running time of cinema films that had already been exposed. The conflicts between liberal theory and restrictive theory did not stop at cultural identity. There were also economic conflicts concerning the competition among the cultural industries of various nations. The Uruguay Round of the GATT is what made this evident. The United States asserted that movies and the audio-visual field should be subject to liberalization, as other fields were. In contrast, the EU leaned toward so-called cultural exceptionalism and asserted that movies should not be subject to liberalization because they involved cultural identity. The World Trade Organization (WTO) General Agreement on Trade in Services (GATS) is the product of compromise in these conflicts. Member nations are responsible for acquiring most-favored-nation status, market access, and national treatment for services (including the audio-visual field here). At the same time, however, procedures are available which can exempt countries from these responsibilities. Cultural exceptionalism was not officially recognized in the GATS, but in actuality, it became possible for the audio-visual field to be excluded from liberalization. It can be said that liberal theory was nominal and restrictive theory was substantial.

3. The Effects of These Standpoints on UNESCO

At a glance, it would appear that these processes of the GATS secure the cultural policies of nations, but that is not the case. Basically, such processes of the WTO, which basically aims at liberalization and the easing of regulations, are in a way nothing but temporary reconciliations. The countries that subscribe to restrictive theory then change their strategies from a defensive theory that deems culture as an exception to following a proactive theory that emphasizes the specificity of culture. This leads to advocacy of cultural diversity within the United Nations Educational, Scientific and Cultural Organization (UNESCO). In 2001, UNESCO adopted the Universal Declaration on Cultural Diversity, which heavily promotes the concepts that: cultural diversity is essential to mankind as the source of interactions, reforms, and creation-just as biological diversity is needed in nature-that the importance of cultural diversity must be recognized for the sake of current and future generations because it is the common heritage of mankind, and that attaining multiculturalism is extremely important in achieving cultural diversity. Furthermore, UNESCO adopted the Convention on the Protection and Promotion of the Diversity of Cultural Expressions in 2005 (effective as of 2007). Cultural diversity has been linked to symbolic concepts such as peace, human rights, democracy, sustainable development, and the common heritage of mankind with this treaty. As a result, sovereign rights that urge measures and policies for the conserving and promoting of cultural diversity been recognized in various countries.

4. The Significance of the UNESCO Treaty in Cultural Diversity

It is a generally accepted view that, of the liberal theory and restrictive theory described above, the latter has prevailed when a country is granted sovereign rights that conserve and promote cultural diversity with this treaty. However, this treaty does not go so far as to call on signatory countries to adopt multiculturalism (the idea and principle that the government should conserve the cultures of each ethnic group and promote the social involvement of these groups). Therefore, there is still the risk of oppression of minority cultures within a country in the name of sovereign rights being justified as national policy. The issue of how to coordinate the relationship between this and other treaties (especially WTO agreements that will be revised and those that will be newly made in the future) has yet to be decided. However, there is the possibility of a negotiating country adopting the Treaty on Cultural Diversity, and justifying and presenting a basis for its own cultural policies during the formation of future treaties. Through such adoptions, there will likely be substantive adjustments made between this treaty and treaties that will be formed in the future. Sovereign rights are accompanied by both positive and negative aspects as described above, and there may be cases where problems-such as domestic unrest over unequal regard in terms of culture-are left unattended, depending on the circumstances. There are many aspects of cultural phenomena, but this treaty, at least, will surely serve as a certain restraint on the negative aspects of the deepening and broadening of globalization on an international level. I am very interested in how this treaty will be enforced in the years to come.

Maki Nishiumi
Professor, Faculty of Law, Chuo University
Areas of Specialization: International law
Born in Tokyo, in 1955. Graduated from the Department of Law, Faculty of Law, Chuo University in 1980. Withdrew from the Doctoral Course of the Graduate School of Law, Chuo University in 1985. Received Master of Law degree (Chuo University). Appointed to current post in 1996 after serving as Associate Professor on both the Kumamoto University Faculty of Law and the Chuo University Faculty of Law. Research themes include culture and international law, humanitarian aid, and North-South issues and international law. Major publications and translations include Problèmes juridiques concernant la famille d'aujourd'hui en France et au Japon (Coauthor, Institute of Comparative Law in Japan, 2001), United Nations' Contributions to the Prevention and Settlement of Conflicts (Coauthor, Institute of Comparative Law in Japan, 2003), and Humanitarian Aid Activities by NGOs [NGO No Jindou Shien Katsudou] (Co-translator, Collection Que sais-je?, 2005).