The second part of the book explores the complex interplay between cultural policies and economic development in practice by examining the jurisprudence of international economic courts. After mapping the legal framework governing cultural heritage on the one hand and free trade and foreign direct investment on the other in part I, the book now examines the disputes in the economic and cultural context adjudicated before investment treaty arbitral tribunals and the WTO adjudicative bodies.
In the light of 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. The recent proliferation of cultural heritage cases has brought such tension between economic globalization and cultural governance to the forefront of scholarly debate and public scrutiny because of their public policy implications. Therefore, the jurisprudence of international economic courts offers a fertile field of analysis.
Adjudication is a mode of governance and has a fundamental importance with regard to the concrete implementation of legal regimes. While the primary function of adjudication is resolving a given dispute thus benefitting the parties to the same proceedings, adjudication also incidentally produces certain public goods. In particular, it provides ‘one forum for debate over social values’ and produces ‘publicly available judgments that clarify or develop international law … on an essentially universal scale.’1 More importantly, ‘in issuing their decisions, international courts shape fundamental norms about the sovereignty of states as well as the daily lives of countless individuals.’2
The interplay between the protection of cultural heritage and the pursuit of economic interests in international law has been approached adopting a variety of perspectives and methods. Yet, most have approached the relevant issues focusing on the relevant treaty provisions, leaving the critical assessment of relevant jurisprudence aside. Furthermore, when cultural heritage-related cases have been examined, they have been considered from a mere economic law standpoint, leaving cultural policy arguments aside.
A number of questions arise in this context. First, is it legitimate for the state to adopt protectionist cultural policies? What are the limits, if any, to state intervention in cultural matters? Second, if the state adopts cultural policies, how do we set the boundaries between legitimate regulation (which is not compensable) and violation of treaty provisions (which is compensable)? To what extent do international economic law obligations collide with states’ cultural policies? Third, how have adjudicators dealt with these crucial policy issues? Have international economic courts paid any attention to cultural heritage and if so, how have they balanced economic interests and the cultural policies of host States? What type of reasoning have such courts adopted? What values and interests are at the heart of their thinking and practice? This book aims to provide a fresh approach to these questions, offering an in-depth analysis of the relevant jurisprudence.
One might expect the embryonic field of cultural heritage law to be overwhelmed by the long-established and sophisticated field of international economic law—not least, given that international economic courts have limited jurisdiction and so cannot adjudicate on the violation of other norms of international law outside the realm of international economic law unless given the mandate to do so. However, this book shows that arbitrators have increasingly taken cultural concerns into consideration in deciding cases brought before them, refusing to limit themselves to purely economic standards of valuation. Nonetheless, concerns remain that unlike bodies with, for example, responsibilities for human rights, international economic courts are ill-suited to the task of protecting cultural entitlements. The next chapters verify whether international adjudicators take cultural concerns into account, and more generally, what impact cultural policies have on the structure of international law.
In scrutinizing the relevant cases, the methodology is multilayered and has three strands: (1) empirical/exploratory; (2) doctrinal; and (3) evaluative. The first empirical strand involves an impressive amount of detailed research of the corpus of cases. These cases are identified by ascertaining whether disputes
Much more difficult is detecting those cases that despite not making formal reference to cultural concerns, still reflect fundamental cultural choices. These cases are detected using the available literature, qualified newsletters, and newspapers. Take, for instance, cultural differences in attitudes toward risk arising from food. As noted by Voon, although ‘disputes in this field are not typically framed in terms of culture, consumers’ perception and tolerance of risk in connection with food safety often has cultural foundations.’3 For instance, ‘the culture and attitudes of European citizens have tended to favor traditional foods and minimal processing … In contrast, Americans have been more willing to accept new technologies.’4 In the EC–Hormones case, the WTO panels and AB held that the EU had violated certain provisions of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement)5 in restricting the trade of meat treated with growth hormones.6 Only ten years after the AB ruling have the parties eventually settled the dispute, ‘demonstrating the extreme difficulty involved in resolving conflicts arising from deeply held cultural beliefs’.7 A cultural understanding of such disputes is also demanded by parallel developments at the UNESCO level, where certain types of food have been considered forms of intangible cultural heritage.
The second doctrinal strand of the adopted methodology examines the relevant jurisprudence on the basis of textual reading, explanation, and exegesis. The cases are scrutinized, discerning the facts of the controversy, the legal issues that the court decides, and the reasoning used by the court. The analysis aims at understanding the inner logic of the decision. In this regard, particular
The third evaluative aspect of the work is based on the adoption of both cultural and economic law concepts. Almost invariably cultural heritage-related disputes involve a balance between the protection of cultural heritage and economic interests; albeit in some circumstances the arguments for protecting cultural heritage may be supported by economic reasoning. Traditionally scholars have adopted a single track—that is, they have used the traditional categories of cultural heritage law or economic law. Yet, because of their complexity and multidimensional nature, each case is assessed in light of both cultural and economic standards.
By bringing together the two aforementioned themes, the book is uniquely placed to assess whether different international economic ‘courts’ are adjudicating analogous cases in a similar fashion or whether there are significant divergences. The critical assessment of such jurisprudence may help detect common patterns, leading to the coalescence of general principles of law and/or customary law requiring the protection of cultural heritage in international law. While some research has been done with regard to the existence of such a principle in wartime,8 the parallel question as to whether such a principle exists in times of peace has received limited scholarly attention. Finding out whether such a principle also exists in peacetime would be significant because general principles and customary international law are binding on states, irrespective of their adherence to specific treaties.
Joshua Paine, ‘International Adjudication as a Global Public Good?’, (2019) 29 EJIL 1223–1249, 1226.
Suzanne Katzenstein, ‘In the Shadow of Crisis: The Creation of International Courts in the Twentieth Century’ (2014) 55 Harvard International LJ 151–209, 152.
Tania Voon, ‘Culture, Human Rights, and the WTO’, in Ana Filipa Vrdoljak (ed.), The Cultural Dimension of Human Rights (Oxford: OUP 2013).
Id.
Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), 15 April 1994, 33 ILM 1144.
WTO Appellate Body report, EC–Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, circulated 16 January 1998, adopted 13 February 1998.
Voon, ‘Culture, Human Rights, and the WTO’.
Roger O’Keefe, The Protection of Cultural Property in Armed Conflict (Cambridge: CUP 2001).