Integrating human rights in WTO law on cultural and educational goods and services

Abstract

This thesis analyses how parallel international legal obligations to protect human rights and to liberalise trade in educational and cultural goods and services in the framework of the World Trade Organisation (WTO) can and should be balanced. The thesis first critically assesses cultural and educational concerns as typically voiced with regard to the General Agreement in Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS). It finds that even if aspects of the standard cultural and educational critique of GATT/S seem misguided, a number of serious structural implications do exist. It is argued that given substantive commonalities in cultural and educational concerns properly construed, their parallel pursuit in "culturally sensitising" GATT/S law is useful. The thesis then explores whether and how GATT/S caused socio-cultural tensions can be articulated more precisely with reference to human rights. It finds that concerns relate both to how GATT/S law is negotiated and interpreted and to how GATT/S law implementation substantively impacts the enjoyment of human rights. It is posited that substantive education and culture related human rights concerns are best unified into a comprehensive understanding of the right to education, and addressed accordingly. Next, legal avenues are identified through which human rights concerns raised by WTO trade in culture and education can and should be voiced. It is argued that cultural and educational issues embodied in the right to education can be satisfactorily accommodated, particularly through Article I:3(b)/(c) GATS and different GATT/S General Exception grounds. Finally, the thesis argues that identification of relevant GATT/S provisions will not automatically result in a WTO balancing practice conducive of human rights protection. Further conceptual, methodological and institutional barriers are identified that will need to be overcome effectively truly to start bringing GATT/S trade in culture and education in line with human rights imperatives.