This article maps out the terrain in which state actors and legal scholars make claims premised on a cultural exception to justify derogating from international legal norms. The author’s aim is to understand why some of these claimed cultural practices displace international legal norms, while other practices are dismissed as violating international legal norms. Part II will examine this discourse in relation to the rights of women and sexual minorities. This article will show that the international community generally regards gender norms as cultural and the international legal norm of gender equality usually defers to national cultural practices. Part III discusses the discourse of cultural exceptions in the context of international trade. The author will argue that when states assert a right to protect themselves from cultural imports, like publications, film, sound recordings, and television programs, the international community generally rejects these claims as a pretext for economic protectionism. Part IV considers cultural exceptions to international environmental norms. Some states argue that they have the right to trade in the products of endangered species based upon traditional cultural practices. The international community refuses to recognize these practices as "cultural" and insists on compliance with the international legal norm. However the international community does accept these practices as "cultural" among some indigenous nations and has granted a de minimis cultural exception to environmental norms for these indigenous nations. Finally, Part V attempts to reconcile the apparently inconsistent treatment of cultural claims. The author concludes that cultural claims are accepted only to the extent that they facilitate globalization by displacing popular anxiety caused by market liberalization.
Joel R. Paul,
Cultural Resistance to Global Governance,
Mich. J. Int'l L.
Available at: http://repository.law.umich.edu/mjil/vol22/iss1/1