Cultural diversity is a central theme in the history and theory of international law. Commercial exchanges, migratory fluxes, and cultural connections have always occurred, and these interactions have always raised the question of how diverse communities can live together and engage in just, peaceful, and prosperous relations while retaining and enjoying their cultural differences. People seem naturally disposed to wander, travel, explore new regions, and engage in commerce. At least in some cases, movement is driven by necessity, that is, the need to respond to vicissitudes, such as war, famine, and drought. Whatever the historical and contemporary reasons for human interactions, the challenge of governing ‘a heterogeneous world while simultaneously accommodating deep cultural, social, and religious differences’ remains a key ‘feature of international law,’1 and has become a particularly pressing issue today due to globalization, intensified commercial exchanges, and cultural interactions.
By creating the conditions for ongoing dialogue among civilizations,2 respect for cultural diversity and nations’ rich and diverse cultural heritage can foster just, peaceful, and prosperous relations among nations.3 Cultural heritage is a multifaceted concept which includes both tangible (such as monuments, sites, and cultural landscapes) and intangible cultural resources (such as music, traditional knowledge, and cultural practices). While ‘culture’ represents inherited values, ideas, and traditions, which characterize social groups and their behavior, ‘heritage’ indicates something people cherish and hand down from one generation to another. There is no single definition of cultural heritage at the international law level; rather, different legal instruments provide various definitions often focusing on distinct categories of cultural heritage – e.g. cultural diversity, intangible cultural heritage, and underwater cultural heritage – rather than approaching it holistically.4 Certainly, the protection of cultural heritage is a fundamental public interest that is closely connected to cultural identity and is deemed to be among the best guarantees of international justice and peace.
Economic globalization and international economic governance have spurred a more intense dialogue and interaction among nations – potentially promoting cultural diversity and providing the funds to recover and preserve cultural heritage. The expansion of trade and foreign direct investment (FDI) facilitates the interaction between different cultures and may be conceived as a process for expanding cultural freedom.7 As a result, there can be mutual supportiveness between the promotion of trade and FDI on the one hand, and the protection of cultural heritage on the other.
However, economic globalization and international economic governance can also jeopardize the safeguarding of cultural heritage. Asymmetry in flows and exchanges of cultural goods can lead to cultural homogenization and the predominance of a given dominant culture. The commodification of culture, that is, the transformation of cultural practices or items into commodities or objects of trade, can dilute their cultural value unless it is conducted in a culturally appropriate way. Such cultural objects and practices risk becoming mere market items regardless of their cultural value for their traditional stakeholders. In parallel, investments in the extractive industries have the ultimate capacity of changing cultural landscapes and the ways of life of local communities.
At the same time, the increase in global trade, economic integration, and FDI has led to the creation of legally binding and highly effective regimes that require states to promote and facilitate trade and FDI. The regime created by international economic law within the boundaries of the host state has increasingly determined a tension between the promotion of economic
International disputes relating to the interplay between the protection of cultural heritage and economic integration are characterized by the need to balance the interests of a state to adopt cultural policies on the one hand, and the economic interests of investors and traders on the other. Trading nations and investors have increasingly claimed that cultural policies breach international economic law provisions. In particular, they have alleged discrimination and other breaches of international treaties’ provisions. They have brought claims before two separate international dispute resolution systems: the World Trade Organization (WTO) Dispute Settlement Mechanism (DSM) and investment treaty arbitral tribunals respectively.8
The book examines whether, and if so how, international economic law deals with cultural heritage. Although significant historical and structural differences exist between international trade law and international investment law and their respective dispute settlement mechanisms—the WTO DSM on the one hand, and investment treaty arbitration on the other—, some similarities in the subject matter—namely global economic governance—make these fields worthy of comparison.9
Historically, rules governing international trade and investment relations have been interconnected. Arbitral tribunals and the WTO DSM essentially do share the same functions by settling international disputes in accordance with parallel subsets of international economic law. WTO panels and arbitral tribunals are asked to strike a balance between economic and noneconomic concerns. Moreover, certain international trade treaties present an articulated regime that the investment treaties presuppose. For instance, there is some coincidence in the subject matter of investment treaties and the Agreement on Trade-Related Investment Measures (TRIM s Agreement).10 There are thus opportunities for cross-fertilization and mutual learning across international regimes. Moreover, the rise of mega-regional free trade agreements (FTA s) with investment chapters indicates a further move toward regime convergence.
However, this does not mean that these two systems should be treated as the same; rather, their differences ought to be recognized. In the post-war
Do international economic ‘courts’ take national cultural policies into account? Are there differences or similarities in how trade and investment tribunals deal with cultural concerns? Can there be mutual supportiveness between the protection of cultural heritage and the promotion of trade and investment in international law? This book demonstrates that the trade and investment regimes deal with cultural concerns in diverging ways. While arbitral tribunals are open to considering cultural concerns in the adjudication of investment disputes, trade courts have shown some resistance to such influx. This monograph discusses, compares, and critically assesses such diverging approaches, investigating the eventual judicial dialogue and cross-fertilization of ideas and practices between international economic courts and other international tribunals. The book concludes that there can be mutual supportiveness between the promotion of economic development and the safeguarding of cultural heritage, by offering some analytical arguments and legal tools for fostering such linkage.
1 Aims and Objectives of the Book
The book aims to investigate how international economic law governs cultural phenomena and responds to the challenges posed by globalization. It has three key objectives. First, it aims to explore the relevant legal framework. Second, it aims to examine the cultural heritage-related disputes adjudicated before international economic courts and tribunals (namely, the WTO adjudicative
Such scrutiny offers three distinct albeit related contributions to the existing literature on international law. First, it contributes to ongoing debates on the unity and fragmentation of international law. Traditionally studied as distinct branches of international law, international economic law and international cultural heritage law have increasingly interacted. The book shows that while there is scope for mutual supportiveness among different treaty regimes,12 much remains to be done to build a harmonious international legal order. In negotiating new treaties, states should be aware of their existing rights and obligations under international law. In parallel, in interpreting and applying international law, international courts and tribunals should contribute to its harmonious development. When pursuing their objectives, non-state actors should also consider pertinent developments of international law.
Second, the book contributes to the debate on the legitimacy of international economic law and its courts. As is known, the current international economic law architecture, which was established at the end of World War II (WWII) to promote free trade and foreign investment, is currently under pressure. Critics contend that the international legal system has gone too far, by ‘expand[ing] its scope, loosen[ing] its link to state consent, and strengthen[ing] compulsory adjudication and enforcement mechanisms’.13 They argue that international economic governance risks jeopardizing the protection of noneconomic
By focusing on how international economic courts have dealt with cultural heritage, the book zooms in and contributes to this debate. Such jurisprudence epitomizes the debate on the linkage issue and constitutes the front line of such a battle of ideas. This is a battle for the soul of international law. Not only does it lie at the heart of the relationship between domestic and international law, but it also relates to the very idea of the international community, that is, the prime unit of international law. A diverse, multicultural, and inclusive international community requires understanding, respect, and even appreciation of cultural difference, while pulling together for the common good. If a state overly prioritized its own economic interests over the cultural concerns of another, it would certainly alter broader dynamics, disrupt mutual trust, and undermine sustainable development on the one hand and international justice and peace on the other.
Third, the interaction between international economic law and international cultural heritage law not only illuminates the institutional, structural, and legal differences between the two fields, but also highlights and contrasts their promises and pitfalls. The book examines the challenges and prospects that the linkage between trade and investment on the one hand and cultural heritage on the other poses for the specific branches of international law involved: international trade law, international investment law, and international cultural heritage law.
Let us consider some examples. Indigenous hunting practices constitute a form of intangible cultural heritage deemed essential to preserve Indigenous way of life. As Europeans perceive the hunting of seals to be morally objectionable because of the modalities through which the seals are hunted, the European Union (EU) banned the trade of seal products except those derived from hunts traditionally conducted by the Inuit and other Indigenous communities for cultural and subsistence reasons.16 The Canadian government
The AB confirmed that the EU Seal Regime discriminated against like products under Articles I (Most Favored Nation) and III:4 (National Treatment) of the GATT 1994. The AB also determined that the ban on seal products could be justified on moral grounds under GATT Article XX(a). However, it held the regime did not meet the requirements of the chapeau of Article XX of the GATT 1994, criticizing the way the exception for Inuit hunts had been designed and implemented.22 The AB noted, among other things, that the exception contained no anti-circumvention clause,23 and pointed out that ‘seal products derived from … commercial hunts could potentially enter the EU market under the … exception.’24 The AB concluded that the EU Seal Regime was not justified under Article XX(a) of the GATT 1994.25
A survey of this and analogous cases shows that international trade law, a conspicuous branch of international economic law, has developed only limited
In parallel, this and similar cases show that notwithstanding a growing regulation of the field, international cultural heritage law—that is, the subset of international law governing cultural heritage—remains underdeveloped vis-à-vis other fields of law. In fact, the evolution of international cultural heritage law has not been matched by a corresponding development of enforcement procedures:26 not only does international cultural heritage law lack a centralized and permanent court, but most of its instruments lack any reference to binding dispute settlement mechanisms.
In another dispute, a US company filed an investment treaty arbitration against Ukraine because the latter, inter alia, required that 50 percent of the general broadcasting of each radio company in Ukraine should be Ukrainian music. The claimant argued that the local music requirement breached the investment treaty provision prohibiting the state from forcing foreign companies to buy local goods. The claimant also contended that ‘We should allow the audience to determine what it wants and we think that since Ukraine is seeking the status of a country with a market-economy, it should not introduce Ukrainian culture by force.’27 Is the local music requirement a breach of the ban on performance requirements? Is it justified on public policy grounds as part of the state’s legitimate right to preserve cultural heritage? The Arbitral Tribunal held that the condition of the bidding process ‘was a legitimate decision, based on a public interest choice to extend the use of Ukrainian in the media’, arguably contributing to the diffusion of Ukrainian culture.28
This case confirms the indeterminacy of both international investment law and international cultural heritage law. International investment law does not rely on a multilateral investment treaty – rather, it is made up of hundreds of bilateral investment treaties (BIT s) and chapters of regional trade agreements
Yet, the particular fluidity of international cultural heritage law can make it difficult for adjudicators to ascertain the legitimacy of such measures. Concerns remain that cultural policies can disguise discrimination and protectionism. Because there is no ‘World Heritage Court’, cultural heritage-related disputes have been attracted and settled by international economic ‘courts’. Such courts scrutinise cultural policies to determine whether the latter promote the public interest and, if so, whether the state has struck a proper balance between the means employed and the aim sought to be realized. Given the significant and consistently increasing number of international economic disputes that present cultural elements due to globalization, the interaction between the protection of cultural heritage and international economic governance deserves further scrutiny.30
The interplay between the protection of cultural heritage and the promotion of economic activities relates to the very architecture of international law. The rationale is twofold: on the one hand, international law governs the relations among different civilizations both in times of peace and in times of war. In its current form, international law is the result of a slow but steady ratification of treaties among different nations, and the crystallization of customs and general principles of law that have gradually emerged through century-old interactions among diverse civilizations. On the other hand, economic factors have long contributed to growing interactions among civilizations and the coalescence of international law since antiquity. Trade and foreign investments have not ony driven a closer connection among different cultures, but also determined the need to govern such interactions. Economic exchanges can also promote, and have promoted, the free flow of ideas, cultural diversity, and equality of opportunities, as well as social and economic welfare.31 In sum, both culture and economic factors have played a significant role in shaping international relations and contributing to the emergence of international law.
The economics-and-culture debate also reflects the fundamental dialectics between the particular and the general, the domestic and the global, and the national and the international. The clash between the protection of cultural heritage and economic globalization constitutes a special case of the more general tug-of-war between the state regulatory autonomy and international law.32 At their core, cultural heritage-related disputes involve a state’s cultural sovereignty and society’s most cherished values that are definitive of national identity. Therefore, the protection of cultural heritage can be thought of as a public interest of the state. However, such safeguarding also reflects the common interest of humankind, thus transcending the interests of individual
The tension between the protection of cultural heritage and the promotion of economic exchanges is similar to, but also differs from, other dynamics, such as those between economic globalization on the one hand, and public health and environmental protection on the other.34 It is similar to other tensions, because it conceptually belongs to the wider debate on the linkage issue—namely, how international economic law relates to noneconomic values. It is distinct, because potentially ‘every product, such as meat, spaghetti, cheese, alcoholic drinks including beer, wine, and shochu … bears some cultural traits’ in consideration of factors such as origin, way of manufacture, and mode of consumption.35 Given the breadth of the concept of cultural heritage, addressing the connection between the protection of cultural heritage and the promotion of economic development is vital for successfully addressing all the other linkages.
The linkage between economic interests and cultural concerns can be, and has been, approached from different perspectives. For instance, in 2020, architects, engineers, and economists signed a manifesto for the cultural renaissance of the economy in response to the ongoing pandemic. The open letter highlighted the importance of culture for global prosperity and sustainable development, noting that ‘territories that successfully preserve and promote the different aspects of their original identities will enjoy a real competitive advantage’ on the global plane.36 In fact, cultural diversity is a sign of resilience, vitality, and renaissance. In this interdisciplinary statement, scholars endorsed the idea of the purple economy – that is, an economy that takes into account cultural aspects, adapts to, and benefits from, cultural diversity.
In particular, this book investigates whether and how cultural heritage can be mainstreamed into international economic law. At the same time, it cautions against an indiscriminate merger and acquisition of cultural entitlements in international economic law: it is submitted that while states must comply with international economic law obligations, certain cultural entitlements are linked to human dignity and to other human rights and may possess a higher status.
This analysis contributes to the current discourse on global governance and strengthens the growing cognizance of the importance of effective protection of cultural heritage for just, peaceful, and prosperous relations among nations. As cultural entitlements are deeply linked to other human rights, they have a high societal relevance. As a result, this study will be of interest to a vast audience, including but not limited to international law scholars and practitioners, political and social scientists, and state governments, as well as cultural heritage experts and other interested audiences. Although the language is necessarily technical, deliberate efforts are taken to achieve clarity and cohesion.
3 The State of the Art
This book aims to fill a significant gap in the current literature: to date there is no comprehensive study covering the interplay between culture and economic
At the same time, the book presents some lines of continuity with the available literature that can be placed in five broad categories examining: (1) the interplay between international law and state regulatory autonomy;37 (2) the interaction between international economic law and general international law;38 (3) the linkage between international trade law and cultural policies;39 (4) the relationship between international investment law and cultural policies;40 and (5) international cultural heritage law.41
Therefore, the book complements the existing literature in several ways. First, the examination of the interaction between the protection of cultural heritage and the promotion of free trade and FDI constitutes a paradigmatic case study of the broader interplay between state sovereignty and international law; it offers useful insights into clarifying the interaction between local and global levels of governance. Therefore, the book deepens the discussion
Second, the interaction between the protection of cultural heritage and the promotion of free trade and FDI also constitutes a case study of the interplay between general international law and its subfields. The relationship among different fields of international law poses a range of questions including whether, and if so how, the content of one field can inform that of another.42 In the past few decades, the scope of international law has increased remarkably, expanding quickly to govern the most varied types of phenomena, from trade to cultural heritage protection. Multilateral institutions have been set up in the fields of commerce, culture, and development. However, this expansion has taken place in an uncoordinated fashion, and questions arise as to whether the different fields of international law can be considered as self-contained regimes, or as parts of a whole.43 The interplay between international cultural heritage law and international economic law challenges the existence of unity within international law and calls into question whether international law is a system or not. It highlights the role that international law plays within its subfields and the distinct contribution that the latter can bring to the former. Although international cultural heritage law and international economic law are treated as separate fields with their own norms and institutions, they do not exist in a state of isolation; in fact, they are increasingly connected. This book hopes to assist in contributing to a greater understanding of these linkages.
Third, the book contributes to the existing literature by examining the tension between international cultural heritage law and international economic law. The book complements the existing literature on ‘trade and culture’ and ‘investment and culture’ by examining these fields together in order to ascertain the emergence of general principles of law requiring the protection of cultural heritage in time of peace. Not only does the book provide extensive coverage of recent cultural heritage-related trade and investment disputes, but it also offers an analytical framework to critically assess such disputes.
Only in the past decades have culture and economic development been envisioned as connected worlds that intermingle in various ways, and international
Yet, a comprehensive scrutiny of the protection of cultural heritage in international economic law is needed because international investment law complements the existing international trade regime in many ways. Both trade and investment disputes may jeopardize the cultural policies of the host state if read in ‘clinical isolation’ from international law.48 Moreover, questions arise as to whether the approaches adopted by the WTO ‘courts’ on the one hand and those adopted by arbitral tribunals on the other are converging or diverging to any significant extent, and what implications these converging divergences may have on the development of international economic law, international cultural heritage law, and international law more generally.
Finally, the book complements the existing literature on international cultural heritage law. Cultural heritage law scholars have focused on the emergence of international cultural heritage law as a distinct field of law49 and have analyzed its multifaceted aspects, often highlighting the lack of effective
What are the strengths and limitations of the current state of the art? Certainly, there is a growing interest in cultural heritage governance at both national and international levels, and the literature is expanding fast. Nonetheless, most studies have approached the interplay between cultural policies and economic development from an institutional perspective,52 and few have focused on the jurisprudence of the relevant international economic tribunals. In other words, the current state of the art ends where the important work should start: namely, once the institutional and legal features of the protection of cultural heritage have been examined, the scrutiny of the relevant cases assumes paramount importance to evaluate whether cultural values are adequately protected.
Often, cultural heritage-related disputes have been examined from a mere economic law standpoint, leaving cultural concerns aside and/or failing to adequately identify some core cultural issues.53 As adjudication plays a fundamental, bottom-up role in the implementation of a given legal regime, this book analyzes the adjudicative patterns of cultural heritage-related disputes to map the interplay between the protection of cultural heritage and economic interests in international economic law.
This book fills a significant gap in contemporary legal studies, shedding light on the interplay between the protection of cultural heritage and the
The book is timely given the pressing need to protect cultural heritage and to promote economic activities in international law. Given the increasing global economic interdependence and the growing tension between the protection of cultural heritage and the promotion of trade and investment, it is of crucial importance to examine how this interaction takes place in practice. In this regard, the jurisprudence of the WTO adjudicative bodies and arbitral tribunals offers a fertile field of analysis. The recent proliferation of cultural heritage-related cases has brought the tension between economic globalization and cultural governance to the forefront of scholarly and public debates, due to their salient public policy implications. Research needs to be done in order to verify whether international adjudicators take cultural concerns into account; whether such concerns are not disguising protectionist aims; and more generally, what impact the interplay between the protection of cultural heritage and the promotion of economic activities may have on the structure of international law.
The underlying hypothesis of this book is that reconciliation of economic and cultural interests is possible, and that such interests may further reinforce each other. Development should be conceived as a broad concept inclusive not only of mere economic growth, but also of human flourishing and well-being to which cultural elements are crucial. The book thus aims to build a coherent analytical framework for investigating the existing legal framework and the relevant jurisprudence to critically assess recent legal developments and to shed light on crucial issues of international law. The book can not only provide guidance to policymakers, including international organizations and national governments, in order to reconcile the protection of cultural heritage and the promotion of economic development, but also contribute to current theoretical debates on the future of international law. Moreover, mapping the existing cases offers the adjudicators some guidance for the settling of analogous disputes. Finally, this book offers legal
4 Methodology
This book crosses traditional boundaries between academic disciplines to explore an area of inquiry at the crossroads between culture, economics, and law. Because of the interdisciplinary character of the research topic, methods and insights of different disciplines and traditional fields of study are taken into account. In particular, reference is made to studies elaborated under the aegis of UNESCO in international relations literature and in cognate disciplines such as anthropology and cultural studies. These studies help us understand the content and proper contours of cultural heritage.
The analysis maintains a primarily legal character and rests on sound methodological grounds. The project rests on a firm theoretical standpoint, elaborated by Hart.54 The author adopts a ‘moderate external point of view’55 that combines ‘explanation’ (which implies the commitment of the researcher to objectivity) with ‘comprehension’ (understanding the inner logic of the object of study), and provides the rational structure on which the scientific nature of her approach is based. This approach does not follow a mere descriptive stance but considers the legal norms as the results of balance of interests. This is very appropriate to the study of international law, which is the outcome of intense negotiations.
Given the aforementioned theoretical standpoint, the project proceeds as follows. First, it explores the relevant legal framework governing the five different but related categories of cultural heritage: (1) world heritage; (2) underwater cultural heritage; (3) intangible cultural heritage; (4) cultural diversity; and (5) Indigenous heritage. This taxonomy reflects the best practice in the field. Reference is made to the relevant UNESCO Conventions and declarations as well as human rights instruments which variously govern the protection of cultural heritage under international law. As a wide range of norms can have a direct or indirect significant impact on cultural matters, reference is made to other international legal instruments where appropriate.
Second, the research identifies and examines the cultural heritage-related jurisprudence before international economic courts and tribunals. The relevant cases are identified by ascertaining whether disputes brought before these courts and tribunals involved any of the different typologies of cultural heritage: that is, world heritage, underwater cultural heritage, cultural diversity, intangible cultural heritage, and Indigenous heritage. Cases are considered as relevant when an inherent interest is identified, or when the circumstances surrounding them are of relevance to the interplay between the protection of cultural heritage and the promotion of free trade and FDI.56 In this scrutiny, the institutional differences among the various courts and tribunals are taken into account. The research compares the cultural heritage-related jurisprudence developed by international courts which form part of legal regimes designed to achieve various nonidentical institutional goals. Among other things, the actors who may file claims before these different courts and tribunals are not identical either. Whereas only states are (formally) involved in cases before the WTO, private actors do enjoy access to investment treaty arbitration. These and other factors are taken into account in the comparative analysis.
The book has a strong exploratory element and adopts a multiplicity of techniques to detect relevant cases in order to obtain a deeper knowledge of the research object. One such tool is the use of some very large databases – for instance, the jurisprudence of the International Center for the Settlement of Investment Disputes – that are already in digital form, so that keywords have been used to identify the relevant cases. Another port of entry has been the reading of select academic literature.57
Much more difficult is detecting those cases that despite not making formal reference to cultural concerns, still reflect fundamental cultural choices.
The challenge, however, is not simply to identify the relevant jurisprudence in this way, but also to examine such cases displaying the tension between the protection of cultural heritage and economic interests. Examining cultural heritage-related cases requires acknowledging their complexity and multidimensional nature and thus adopting a pluralistic set of approaching perspectives. Almost invariably cultural heritage-related disputes involve a mixture of cultural and economic interests. In some circumstances, the arguments for protecting cultural heritage go hand-in-hand with and support economic interests; in other cases, there can be a clash between the protection of cultural heritage and the promotion of economic exchanges. Traditionally, scholars have adopted a single track – that is, they have focused on cultural heritage law or on economic law using the traditional categories of each field. Yet, the complexity and multidimensional nature of the cultural phenomena require the adoption of different albeit complementary perspectives.
This book thus adopts a double track. On the one hand, the cases are scrutinised discerning the facts of the controversy, the pertinent legal issue, and the reasoning of the tribunal. On the other hand, each case is assessed in the light of both economic and cultural standards (as detailed in international law) to determine whether such a case takes cultural concerns into account, and/or whether policies allegedly aimed to protect cultural heritage have amounted to disguised restriction on trade and/or foreign investment. By adopting a double track, the methodological differences between the legal systems regulating transnational economic transactions and cultural heritage, respectively, are acknowledged. The adoption of a double track enables
The book is also uniquely placed to assess the eventual convergence or divergence between international trade and investment law. Discovering common traits in these fields can help in identifying the emergence of general principles of international law or even customary law demanding the protection of cultural heritage in international law. While scholars have already ascertained the existence of customary law and general principles of law requiring the protection of cultural heritage in time of war, the existence of analogous principles and customs requiring the protection of cultural heritage in time of peace requires further investigation. The book thus seeks to bridge the gap between academic analysis and judicial practice, ideally contributing important insights on the existence of customary law or general principles of law requiring the protection of cultural heritage in time of peace. Ascertaining the emergence of such norms is particularly important because both general principles of law and customs are sources of international law and are thus binding on states, irrespective of their consent.
Finally, the study proposes ways to reconcile the existing tension between cultural governance and economic interests in international law both de lege lata (interpreting the existing legal instruments) and de lege ferenda (proposing the adoption of amendments or different legal provisions). In particular, the study investigates the question as to whether the mainstreaming of cultural heritage in international economic law can bring together the protection of cultural heritage and the promotion of trade and FDI. Integrating cultural considerations in the treaty text, in the form of textual reference in preambles, cultural exceptions, and exemptions can allow for mainstreaming cultural values in the fabric of international law.
5 Chapter Plan
The book proceeds as follows. The first part of the book aims at defining and connecting the fields of international cultural heritage law and international economic law. Chapter 1 analyzes the concept of cultural heritage and explores the main features of international law governing the same. In particular, it briefly examines the five different but related categories of cultural heritage: (1) world heritage; (2) underwater cultural heritage; (3) intangible cultural heritage; (4) cultural diversity; and (5) Indigenous heritage. Given their variety, cultural phenomena may well fall within several of these categories; by way of
Chapter 2 briefly sketches out the main features of international economic law and its sophisticated dispute settlement mechanisms focusing on WTO law and international investment law. After briefly exploring the rationale behind the promotion of international trade and foreign investment, the chapter examines the elements of trade and investment rules that are of particular importance when considering their impact on cultural policies. It then discusses the relevant dispute settlement mechanisms, namely the WTO DSM and investor–state arbitration. Finally, it examines the so-called ‘legitimacy crisis’ of international economic law, including the recent crisis of the WTO AB, and ongoing proposals for the establishment of a multilateral investment court.
Chapter 3 connects the different fields. It discusses the so-called ‘linkage issue’ and its relevance for broader debates about the unity or fragmentation of international law.60 International economic law recognizes the importance of a sovereign state’s ability to pursue certain noneconomic goals.61 Nonetheless, whereas linkages between international economic law and noneconomic policies are acknowledged at least in theory, such interplay remains unsettled in practice. Several important linkages have emerged in the past decades such as the linkage between trade and investment on the one hand, and issues
The book focuses on the interplay between cultural sovereignty and international economic law. Conflicts may arise particularly when cultural policies are perceived as arbitrary, unreasonable, or protectionist. Measures allegedly aimed to protect cultural heritage may constitute a disguised restriction to trade or a breach of an investment treaty provision. The scrutiny by international economic courts of cultural policies may contribute to good cultural governance by promoting the adoption of fair and transparent policies. At the same time, there is a risk that international economic courts dilute or neglect significant cultural aspects, eventually prioritizing economic interests over cultural concerns.
The second part of the book investigates the interplay between international economic law and cultural policies in practice, providing a systematic
Finally, the third part of this study addresses the question as to whether the protection of cultural heritage and the promotion of economic activities can be reconciled. While arguably perfect solutions do not exist to completely reconcile the inevitable tension between the protection of cultural heritage and the promotion of economic development, this book aims to suggest legal tools for addressing such tension. It analyzes the legal means for promoting the consideration of cultural heritage in international economic law and suggests new methods and approaches both interpreting the existing legal instruments and renegotiating or amending treaties. The conclusions then sum up the key findings of the study.
Benedict Kingsbury, ‘Confronting Difference: Alberico Gentili’s De Iure Belli (1598) and the Enduring Combination of Pragmatic Pluralism and Normative Judgment’, (1998) 92 AJIL 713–723, 713.
UNESCO, Universal Declaration on Cultural Diversity, 2 November 2001, 41 ILM 57, preamble.
Constitution of the United Nations Educational, Scientific, and Cultural Organization (UNESCO Constitution), adopted 16 November 1945, in force 1946, 4 UNTS 275 (1945), preamble.
Manlio Frigo, ‘Cultural Property v. Cultural Heritage: A “Battle of Concepts” in International Law?’ (2004) 86 International Review Red Cross 367–378, 367.
See generally David Throsby, The Economics of Cultural Policy (Cambridge: CUP 2010).
Amartya Sen, ‘How Does Culture Matter?’ in V. Rao and M. Walton (eds), Culture and Public Action (Palo Alto, CA: Stanford University Press 2004) 37–58.
See generally Amartya Sen, Development as Freedom (New York: Knopf 1999).
Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, 1867 UNTS 154.
See generally Valentina Vadi, Analogies in International Investment Law and Arbitration (Cambridge: CUP 2016).
Agreement on Trade-Related Investment Measures, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, 1868 UNTS 186.
Marc Bungenberg and August Reinisch (eds), From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court (Heidelberg: Springer 2020).
Riccardo Pavoni, ‘Mutual Supportiveness as a Principle of Interpretation and Law-Making: A Watershed for the “WTO-and-Competing-Regimes” Debate?’ (2010) 21 EJIL 649–679.
Mattias Kumm, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’ (2004) 15 EJIL 907–931.
Andreas Follesdal, ‘The Legitimacy of International Courts’, (2020) Journal of Political Philosophy 1–24.
José E. Alvarez, ‘The WTO as a Linkage Machine’ (2002) 96 AJIL 146–158.
European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/R and WT/DS401/R, Reports of the Panel, 25 November 2013, and WT/DS400/AB/R and WT/DS401/AB/R, Reports of the Appellate Body, 22 May 2014.
Agreement on Technical Barriers to Trade, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1, 33 ILM 1125 (1994).
European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, Reports of the Panel, para. 8(2).
General Agreement on Tariffs and Trade 1994, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 187, 33 ILM 1153 (1994).
European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, Reports of the Panel, para. 8(3)(a).
Id. para. 8(3)(d).
European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, Reports of the Appellate Body, para. 5.339.
Id. para. 5.327.
Id. para. 5.328.
Id. para. 6.1(d)(III).
See generally Francesco Francioni and James Gordley (eds), Enforcing International Cultural Heritage Law (Oxford: OUP 2013).
Joseph Charles Lemire v. Ukraine, Decision on Jurisdiction and Liability, ICSID Case No. ARB/06/18, 14 January 2010, para. 406.
Id. para. 407.
Convention on the Protection and Promotion of the Diversity of Cultural Expressions (CCD), Paris, 20 October 2005, in force 18 March 2007, 2440 UNTS 311.
For seminal studies, see Valentina Vadi, Cultural Heritage in International Investment Law and Arbitration (Cambridge: CUP 2014), Tania Voon, Cultural Products and the World Trade Organization (Cambridge: CUP 2011), and Peter Van den Bossche, Free Trade and Culture (Amsterdam: Boekmanstudies 2007).
David Collins, An Introduction to International Investment Law (Cambridge: CUP 2017) 6 (noting that the Phoenician civilization that flourished from 1500 BC in what is now Israel and Palestine ‘establish[ed] commercial settlements in foreign states on the shores of the Mediterranean Sea’ and this ‘also led to the diffusion of the Phoenician alphabet which is the ancestor of all modern Western alphabets.’); Vadime Elisseeff, The Silk Roads: Highways of Culture and Commerce (New York: UNESCO 1998) VIII (noting that ‘The fabled Silk Roads, far from being mere trade routes, were also cultural highways that had played a pivotal role in linking the East and West.’).
Catharine Titi, The Right to Regulate in International Investment Law (Oxford: Hart Publishing 2014); Markus Wagner, ‘Regulatory Space in International Trade Law and International Investment Law’, (2014) 36 University of Pennsylvania JIL 1–87.
Eyal Benvenisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’ (2013) 107 AJIL 295–333.
See e.g. Jorge E. Viñuales, Foreign Investment and the Environment in International Law (Cambridge: CUP 2012); Valentina Vadi, Public Health in International Investment Law and Arbitration (Routledge: London 2012); James Watson, The WTO and the Environment (London: Routledge 2013); Benn McGrady, Trade and Public Health: The WTO, Tobacco, Alcohol, and Diet (Cambridge: CUP 2011).
Rostam Neuwirth, ‘“United in Divergency”: A Commentary on the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions’, (2006) 66 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht/Heidelberg Journal of International Law 819–862, 823–4.
‘Per Un Rinascimento Culturale dell’Economia’, Corriere della Sera, 7 June 2020.
See, for instance, Surya Subedi, International Investment Law: Reconciling Policy and Principle, III ed. (Oxford: Hart Publishing 2016); Giorgio Sacerdoti, Pia Acconci, Mara Valenti, and Anna De Luca (eds), General Interests of Host States in International Investment Law (Cambridge: CUP 2014); Gus Van Harten, Sovereign Choices and Sovereign Constraints: Judicial Restraint in Investment Treaty Arbitration (Oxford: OUP 2013); Meredith Kolsky Lewis and Susy Frankel (eds), International Economic Law and National Autonomy (Cambridge: CUP 2010).
See, for instance, Freya Baetens (ed.), Investment Law Within International Law—Integrationist Perspectives (Cambridge: CUP 2013); Ronnie R.F. Yearwood, The Interaction Between WTO Law and External International Law (London: Routledge 2012).
See e.g. Jingxia Shi, Free Trade and Cultural Diversity in International Law (Oxford: Hart 2013); Lilian Richieri-Hanania, Diversité Culturelle et Droit International du Commerce (La Documentation Française 2009); Tania Voon, Cultural Products and the World Trade Organization (New York: CUP 2007).
See Valentina Vadi, Cultural Heritage in International Investment Law and Arbitration (Cambridge: CUP 2014).
See e.g. Janet Blake, International Cultural Heritage Law (Oxford: OUP 2015); Nina Bandelj and Frederick F. Wherry (eds), The Cultural Wealth of Nations (Stanford CA: Stanford University Press 2011); James A.R. Nafziger, Robert K. Paterson, and Alison Dundes Renteln (eds), Cultural Law—International Comparative and Indigenous (Cambridge: CUP 2010); Craig Forrest, International Law and the Protection of Cultural Heritage (Abingdon: Routledge 2010).
For a seminal study, see Philippe Sands, ‘Treaty, Custom and the Cross-fertilization of International Law’, (1998) 1 Yale Human Rights and Development Law Journal 85–105, 85.
See ILC, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law Report of the Study Group of the International Law Commission finalized by Martti Koskenniemi,13 April 2006, A/CN.4/L.682.
Fiona Macmillan, ‘Development, Cultural Self-Determination, and the World Trade Organization’, in Amanda Perry-Kessaris (ed.), Law in Pursuit of Development: Principles into Practice? (Abingdon: Routledge 2009); Annette Froehlich, ‘L’Enjeu de la Culture dans son Contexte Économique International’, in Paul Meerts (ed.), Culture and International Law (The Hague: Hague Academic Press 2008) 83–95.
Tania Voon, Cultural Products and the World Trade Organization (New York: CUP 2007); Peter Van den Bossche, Free Trade and Culture (Amsterdam: Boekmanstudies 2007).
Federico Lenzerini, ‘Property Protection and Protection of Cultural Heritage’, in Stephan Schill (ed.), International Investment Law and Comparative Public Law (Oxford: OUP 2010); Valentina Vadi, Cultural Heritage in International Investment Law and Arbitration (Cambridge: CUP 2014).
Valentina Vadi and Bruno De Witte (eds), Culture and International Economic Law (London: Routledge 2015) (focusing on the interplay between culture and international economic law, international intellectual property law, and EU law).
Appellate Body Report, United States—Standards for Reformulated and Conventional Gasoline (US—Gasoline), WT/DS2/AB/R, adopted 20 May 1996, at 16.
Janet Blake, International Cultural Heritage Law (Oxford: OUP 2015); James A.R. Nafziger, Robert Kirkwood Paterson, and Alison Dundes Renteln (eds), Cultural Law—International, Comparative and Indigenous (Cambridge: CUP 2010); Craig Forrest, International Law and the Protection of Cultural Heritage (London: Routledge 2010).
Sabine Von Schorlemer, ‘UNESCO Dispute Settlement’ in Abdulqawi A. Yusuf (ed.), Standard-Setting in UNESCO, Vol. 1, (Boston/Leiden: Martinus Nijhoff Publishers 2007) 73–103; Francesco Francioni and James Gordley (eds), Enforcing International Cultural Heritage Law (Oxford: OUP 2013).
Berenika Drazewska, Military Necessity in International Cultural Heritage Law (Leiden: Brill 2022); Noelle Higgins, The Protection of Cultural Heritage During Armed Conflict—The Changing Paradigms (London: Routledge 2021); Roger O’Keefe, ‘Cultural Heritage in International Humanitarian Law’ in Francesco Francioni and Ana Filipa Vrdoljak (eds), The Oxford Handbook of International Cultural Heritage Law (Oxford: OUP 2020) 43–74; Roger O’ Keefe, The Protection of Cultural Property in Armed Conflict (Cambridge: CUP 2011).
Catharine Titi, ‘International Dispute Settlement in Cultural Heritage Law and in the Protection of Foreign Investment: Is Cross-Fertilization Possible?’ (2017) 8 JIDS 535–556.
But see Alessandro Chechi, The Settlement of International Cultural Heritage Disputes (Oxford: OUP 2014).
Herbert L.A. Hart, The Concept of Law (Oxford: Clarendon Press 1961).
Id. 86–88; François Ost and Michel Van de Kerchove, De la Pyramide au Réseau, Pour une Théorie Dialectique du Droit (Bruxelles: Publication des Facultés Universitaires St-Louis 2002) 458.
National disputes presenting an international interest are out of the scope of the book, albeit they may be considered by way of reference. Disputes that have not made it to formal adjudication because they have been settled are also out of the scope of the book, but may be considered by way of reference when the balance struck in such mutual settlements can be meaningfully compared to the outcomes produced through formal adjudication. Outlier cases (that is, those that are atypical) may also be scrutinised, given that they may reveal additional information.
For a similar approach, see Eva Brems, ‘Accommodating Diversity in International Human Rights: Legal Techniques’ in Paul Meerts (ed.), Culture and International Law (The Hague: Hague Academic Press 2008).
Tania Voon, ‘Culture, Human Rights, and the WTO’, in Ana Filipa Vrdoljak (ed.), The Cultural Dimension of Human Rights (Oxford: OUP 2013).
Tomer Broude, ‘Mapping the Potential Interactions between UNESCO’s Intangible Cultural Heritage Regime and World Trade Law’, (2018) 25 International Journal of Cultural Property 419–448.
Barnali Choudhuri, ‘International Investment Law and Noneconomic Issues’, (2020) 53 Vanderbilt Journal of Transnational Law 1–77. For seminal studies, see Sol Picciotto, ‘Linkages in International Investment Regulation’, (1998) 19 University of Pennsylvania JIL 731–768; José E. Alvarez, ‘The WTO as Linkage Machine’, 96 AJIL (2002) 146–158.
See e.g. GATT Article XX.
Henner Gött, Labour Standards in International Economic Law (Heidelberg: Springer 2018); Claire Gammage, ‘(Re)Imagining the Trade–Labour Linkage—The Capabilities Approach’, in Brian Langille (ed.), The Capability Approach to Labour Law (Oxford: OUP 2019) Chapter 14.
Yannick Radi (ed.), Research Handbook on Human Rights and Investment (Cheltenham: EE 2018); Pierre-Marie Dupuy, Francesco Francioni, and Ernst-Ulrich Petersmann (eds), Human Rights in International Investment Law and Arbitration (Oxford: OUP 2009); Sarah Joseph, David Kinley, and Jeff Waincymer (eds), The World Trade Organization and Human Rights: Interdisciplinary Perspectives (Cheltenham, UK: Edward Elgar 2009); Frederick Abbott, Christine Breining-Kaufmann, and Thomas Cottier (eds), International Trade and Human Rights: Foundations and Conceptual Issues (Ann Arbor: University of Michigan Press 2006).
Barbara Cooreman, Global Environmental Protection through Trade—A Systematic Approach to Extraterritoriality (Cheltenham: EE 2017); Emily Reid, Balancing Human Rights, Environmental Protection, and International Trade (Oxford and Portland: Hart Publishing 2015); Saverio Di Benedetto, International Investment Law and the Environment (Cheltenham: EE 2013).
Leila Chennoufi et al., ‘Model Green Investment Treaty: International Investment and Climate Change’ (2019) 36 Journal of International Arbitration 95–134; Panagiotis Delimatsis (ed.), Research Handbook on Climate Change and Trade Law (Cheltenham: EE 2016).
See e.g. Patricia M. Goff, Trade and Culture—The Ongoing Debate (London: Routledge 2021); Kerry A. Chase, ‘Trade and Culture’ in William R. Thompson (ed.), Oxford Research Encyclopaedia of Politics (Oxford: OUP 2019).
Jane Korinek, Evdokia Moïsé, and Jakob Tange, Trade and Gender: A Framework of Analysis (Paris: OECD 2021); Sangwani Patrick Ng’ambi and Kangwa-Musole George Chisanga, International Investment Law and Gender Equality—Stabilization Clauses and Foreign Investment (London: Routledge 2020); Amit Kumar Sinha and Pushkar Anand, ‘Feminist Overview of International Investment Law—A Preliminary Inquiry’ (2021) 24 JIEL 99–125.