Thursday 11 June 2009

Case study on China and Tibet

"Cultural genocide" constitutes the most extreme negation of cultural diversity. A UNESCO convention of 2005 protects and promotes cultural diversity whereas "cultural genocide" is not addressed under existing international law. The paper summarized as follows explores this issue; for the full text, see Int. J. Intellectual Property Management, August 2009.

Le Temps published a short French version of this contribution on 12 June 2008 under the title "La culture est morte, vive le commerce!"


Legal action against asserted cultural genocide and piracy in China:
The strength of the WTO and the weakness of the UNESCO


Abstract

The People’s Republic of China faces the claim that her repression in Tibet combined with her demographic policies in this region causes “cultural genocide”. In March 2008, the Peace Nobel Prize winner Dalai Lama alerted the world community that “the language, customs and traditions of Tibet, which reflect the true nature and identity of the Tibetan people are gradually fading away.” He denounced that “some kind of cultural genocide is taking place”. So far, the United Nations Educational, Scientific and Cultural Organisation (UNESCO) kept silent about these allegations although it loudly asserts to advocate the cause of cultural diversity. As a matter of fact, for the time being, the United Nations have no effective legal instrument to address cultural genocide although the UNESCO produced a Convention on the Protection and Promotion of the Diversity of Cultural Expressions that entered into force last year. One can only find an indirect reference to a form of cultural genocide considered as a crime against humanity in positive international public law in Article II, letter e, of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’): The act of ‘forcibly transferring children of the group to another group’ falls under the meaning of ‘genocide’ if such act is ‘committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’.


Last year, China had also to respond at the World Trade Organization (WTO) to a claim brought up by the USA that her legislation does not comply with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). According to the USA, the Chinese law and practice tolerates piracy that damages so-called ‘copyright industries’ or ‘content industries’, in particular the industries of movies, music, books, journals, and the like. These industries, known as ‘entertainment industries’ in the jargon of the interests that lobbied the US Government to initiate litigation against China, arguably also qualify as ‘cultural industries’ as contemplated by the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. In connection to this case, I argue in this paper that excessive standards of intellectual property protection for the cultural goods and services that these industries produce and distribute run against the very objectives of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. I furthermore propose to establish a link between the lack of any legal action against the alleged perpetration of cultural genocide and the stringent legal action against the tolerance of piracy in China. The purpose of this discussion is to outline the strength of the WTO and the weakness of the UNESCO when it comes to protect and promote of the diversity of cultural expressions, or, respectively, to endanger and destroy this diversity, ultimately by cultural genocide.




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