Studies On International Law Issues Of Subsidies On Cultural Industries

From the perspective of international law, the problem of subsidies on cultural industries shall be spread form three areas:culture, trade and human rights. The comformity of the subsidies on cultural industries to international law is the core issue of this dissertation, which including four main issues:the first one is preposition issue-the classification of cultural products, the second is the core issue-the legitimate factors in different regimes, the third one is exception issues, the last one is conflicts and solutions between the relevant rules about cultural industries subsidies.The first chapter begins with illustrating the basic problems of cultural industries subsidies. Neither the notion of "cultural industries" can be easily defined in theoretical or practical, nor the containing categories of this concept reach a consensus duing to the rich connotation of "culture", "creative" and "industrialization". What's more, it has changed with the development of the practices. As the starting line, the notion of "cultural industries" and "subsidies" have been defined, and the theory basis of cultural industries subsidies have been demonstrated. Then comes to the international law resources of cultural industry subsidies, they can systematically be summarized form culture, trade and human rights perspectives. The cultural resources mainly refer to the cultural policy measures ruled by the parties of UNESCO "Convention on the Protection and Promotion of the Diversity of Cultural Expressions". The trade resources mainly consist of the general trade rules and subsidies rules, which are both have ristrictions to cultural industries subsidies. The human rights resources mainly refer to the cultural rights in "International Convention on Civil Rights and Political Rights" and "International Covenant on Economic, Social and Cultural Rights". At the end of this part, the main content of this paper was illustrated. This part was the basis of the dissertation.The second chapter analyzes the classification of cultural products, that is, whether cultural products belong to goods or services. Because of the inconsistency of the rules on the subsidies of goods and services in trade field, and the demarcation of goods and services is the prerequisite of judging which legal rules are applicable, it is necessary to discuss this problem. Although the classification issue is not unique to cultural products, this in-depth analysis reveals that cultural product qualitative issues are more complex than the classification of generic products:cultural goods often have dual attributes of goods and services, goods and services Fusion phenomenon in the field of cultural products is more obvious. Which applies to the general classification criteria that tangible standards, cultural products are unfair. This paper puts forward the countermeasures under the framework of existing legal rules and puts forward some suggestions on the future development of the harmonization of trade in goods and trade in services.The third chapter studies the legitimacy of cultural industry subsidies. The main contents include three sections, because the subsidies are more trade-related, so the contents of the first two sections discussed the relationships between rules of trade in goods and subsidy for cultural industry, rules of trade in service and subsidy respectively from the perspective of international trade law; the third section makes a conclusion on potential conditions for legal subsidy for cultural industry. Under the cultural law, the Convention on Cultural Diversity gives the right of member states to adopt a relatively broad cultural subsidy, the standard of which is "direct cultural impact", whether it is to give goods or services, to Producers of goods or sevice providers, to domestic or foreign cultural products. Under the view of trade law, the identification, type and legal condition of cultural industry subsidy are the core problems to be solved. In the GATT, the conditions of the exception to Article 3.8 of the Principles of National Treatment and the conditions of the SCM Agreement are required; in the GATS, although there is no clear subsidy rule as in the area of trade in goods, it should be consistent-with WTO members'commitments in the National Treatment in the GATS and market access, as well as examining whether they have made exceptions to the Most-Favored-Nation (MFN) Treatment for subsidies in cultural industries. Subsidies to producers of domestic cultural industries in the form of direct subsidies may be exempted based on GATT Article 3.8 (b), although they may discriminate against foreign like products; tax relief, etc., subsidies in indirect form need to comply with the principle of national treatment, not treating the domestic cultural products more favorable tax measures than foreign like products. In the field of human rights law, the relevant provisions in the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights have certain indirect normative effects on the subsidy of cultural industries. In particular, a country in the implementation of cultural industries subsidy measures should be based on relatively objective and impartial standards, not through the measures of indirect intervention on the subsidies on cultural industry, resulting in the intervention on the freedom of expression of citizens.The fourth chapter mainly talks about the exception rules of cultural industries subsidies which can be used as a justification of cultural industries. The exceptions including three kinds of forms according to the range from large to small, first is the overall cultural exception or cultural industries exception (CIE), second is the general exception of exception to the rule, thrid is the exception to the rule of subsidies. Through the analysis in this chapter, we have discovered that despite the failure "cultural exception", cultural industries exception sprout and development in FT As. The author points out that the trade rules of the general exception rules related to cultural industries include public morals exception and national treasure exception. Among them, the application of the "public morality" is the key to the cognizance of "necessity". And new development of the "national treasure" exception in FTA suggests the possibility of its application to some core cultural industries.The fifth chapter discusses the Conflicts of relevant rules concerning subsidy of cultural industry and its solutions. Confronted with these potential conflicts, it is necessary to demonstrate on conflicts of relevant rules and its solutions in the first. These conflicts can be divided into two categories according to their content, which are conflicts of jurisdiction and conflicts of legal rules. Essentially speaking, the conflicts of the goal of legislation and different countries'interests in cultural industry stand behind above these conflicts. This chapter finds out that, as to the relationship between Convention on Cultural Diversity and those human rights conventions, the Article 2 of Convention on Cultural Diversity has provided guiding principles which clearly define the relationship. As to the relationship between WTO rules and the Convention on Cultural Diversity, it can be inferred that the WTO dispute settlement mechanism is the mechanism most likely chosen by disputing parties after reviewing different kinds of dispute settlement mechanisms; however, due to the obscurity of Article 20 of the Convention on Cultural Diversity, it is hard to recognize the relationship between WTO rules and rules of the Convention on Cultural Diversity. Consequently, the best way to provide subsidies for cultural industries is still to defer to relevant rules of trade agreements.On the basis of the above analysis, this paper focuses on the compatibility of Chinese cultural industries subsidies with international law from the Chinese perspective. The author summerizes the definition and scope of China's cultural industry, the definition of cultural industry subsidy under the framework of "SCM Agreement", the attributes of goods/services of rules, and the promises and reservations of China's cultural industries subsidies in GATS. On this basis, the existing problems of China's policy measures on cultural industries subsidies is that, some of the measures constitute the actional subsidies and have the possibility to be sued, and some others even may constitute prohibited subsidies. And from the angle of domestic law and international law, this paper puts forward some suggestions for the development of China's cultural industries subsidies. From the point of view of domestic law, we should clear the relevant rules according to our country's international law obligation. From the perspective of international law should have a forward-looking perspective, learn from the advanced experience and lessons of other country, we can set up the cultural industries exception considering the development of China's cultural industry, in order to provide a suitable environment for international law.