WTO 분쟁해결절차에서의 문화다양성 협약의 지위

Cultural Diversity Convention (“CCD”) was adopted by universal consensus at the general session of the UNESCO in 2001. The underlying objective of the convention is to allow each state to explore and adopt various measures to protect and enhance diversity in its cultural heritage. Although the underlying objective is highly plausible, the CCD has various provisions that may lead to the violation of various provisions the WTO Agreements. For instance, if a WTO member adopts a measure to protect its cultural diversity in which the member protects its domestic goods and services from the competition from foreign goods and services, or if the member treats its goods and services more favorably, this could lead to direct violation of the relevant provisions of the WTO norms which prohibit such measures. The real problem is how the WTO Dispute Settlement Body (“DSB”) would make a ruling if it is faced with a dispute where one member claims violation of the WTO norms by the other member and the latter attempts to justify its measure based on provisions of the CCD. The basic rule is that the WTO DSB is obligated to look at only provisions of the WTO Agreements, not the relevant provisions of the other international agreements or conventions. WTO’s Marrakesh Agreement, Dispute Settlement Understanding, WTO practice and WTO precedents all collectively support such a proposition. So, a panel or the Appellate Body which reviews a particular WTO dispute as mandated by the DSB only looks at the WTO norms to determine whether there is violation or not. The challenged member cannot justify its violation by referring to the CCD, or other conventions for that matter. The panel, however, may consider the CCD and relevant international agreements to the extent such agreements are not in conflict with explicit provisions of the WTO Agreement. The current mechanism, however, is not able to deal with the current situation in a satisfactory manner. A satisfactory solution can only be found from the amendment of relevant provisions of the WTO Agreements. This amendment can only be achieved through multilateral negotiations. Such negotiations can be conducted in the currently on going Doha Development Agenda or any future discussion tables. In any event, it is highly recommendable that Korea actively participate in this kind of negotiation in the future, as this issues has potential to significantly affect the trade interest of Korea in the long run.