The present is not a potential past;
it is the moment of choice and action.1
SIMONE DE BEAUVOIR
∵
1 Introduction
Far from being self-contained regimes,2 international cultural heritage law and international economic law have increasingly intersected. While these areas of international law reflect the increasing specialization of this field of law, they are not separate from international law; rather, they maintain continuity with their matrix. In fact, there seems to be conceptual fluidity between international law and its subsystems. On the one hand, the contained systems contribute to the development of the container system. Both international cultural heritage law and international economic law play an active role in the development of the substantive and procedural content of international law. They contribute to the maintenance of peace and security by fostering friendly and prosperous relations among nations, by promoting mutual understanding,
More interestingly, international economic law and international cultural heritage law also continuously contribute to the development of international law through their constant interactions. Arbitral tribunals build an ongoing dialogue between international investment law and international cultural heritage law, contributing to the current debate on the unity or fragmentation of international law, and supporting the argument that international law, albeit decentralized, is not an anarchic amalgam of different norms but rather has a structure similar to a system.3 In parallel, the WTO panels and AB have consistently reaffirmed that international trade law is not a self-contained regime, but an important part of international law. In turn, the container system contributes to the development of the contained systems, and international economic courts refer to international law cases and principles in their decisions.
To say that there is continuity between international law on the one hand, and international economic law and international cultural heritage law on the other, does not imply a sort of pre-established harmony (harmonie préétablie or harmonia praestabilita) between the system and its subsystems.4 For the German philosopher Gottfried Wilhelm Leibniz (1646–1716), just as two clocks can tick in time with each other without interaction purely because each is properly constructed, so an invisible hand can from the beginning ensure the harmony of each legal system’s development with that of the others. Rather, the argument of this book is that it is up to the interpreters to act as cartographers of international law and to find the appropriate equilibrium within the system.
What strategies are available to avoid collisions between the promotion of foreign investments and free trade on the one hand, and the safeguarding of cultural heritage on the other? After having critically assessed the interplay between international cultural heritage law and international economic law in theory and practice, this chapter now explores a set of different, yet complementary, legal avenues for integrating cultural threads into the fabric of international economic law.
From a procedural perspective, commentators have proposed a range of alternatives moving toward some judicialization of investor–state arbitration and the
In parallel, while a number of WTO members have launched an alternative appeals mechanism, the Multi-Party Interim Appeal Arbitration Arrangement, others have emphasized that ‘as the WTO needs to be reformed to be responsive, so too does its dispute settlement function need to evolve as part of the institution.’6 While the Appellate Body can contribute to the ‘stability and predictability of the multilateral trading system’, it must also ‘reflec[t] the real interests’ of the WTO members.7 The question of substantive overreach, namely, the fact that the Appellate Body has ‘legislated too much’ in favor of liberalizing trade has inevitably affected the policy space of Member States. Accordingly, scholars call for rethinking the role of the Appellate Body to adjudicate disputes ‘one case at a time,’ and not consider its precedents as binding, thus enabling the development of its jurisprudence.8
Although the establishment of a permanent world investment court and the eventual reform of the Appellate Body could improve the delicate balance between cultural and economic interests in international economic law, they do not necessarily offer a magic formula for balancing the various interests at stake; further reflection is needed.
2 De Lege Lata
2.1 Negotiating Cultural Disputes
Disputes involving cultural heritage often raise complex political, economic, and cultural issues.9 While ‘adjudication is not designed to address extralegal issues’, which are deemed non-justiciable, alternative dispute resolution (ADR) methods (that is, alternative to arbitration and litigation) can be suited to resolve complex disputes involving political, economic, and cultural interests.10 ADR methods are part and parcel of international economic law.
BIT s typically include a three to six-month ‘cooling-off period’ for consultation and negotiation before a claim may be brought.11 The period runs from the date when the dispute arose or when the host state was formally notified by the investor. The practical purpose of the ‘cooling off period’ is twofold. On the one hand, the host state is granted the right to be informed
At the WTO, several provisions of the Dispute Settlement Understanding are ‘clearly designed to facilitate settlement’.16 First, before requesting the establishment of a panel to hear a dispute, a complainant requests consultations.17 In the course of such consultations, which should be conducted in good faith, ‘members should attempt to obtain satisfactory adjustment of the matter.’18 About 40% of the disputes brought before the WTO since its establishment in 1995 have been settled at this stage. For instance, in 1996 the United States initiated consultations regarding Turkey’s taxation of revenues generated from showing foreign movies.19 While Turkey imposed a 25% tax on box office revenues generated from showing foreign movies, it did not impose any tax on receipts from the showing of local films. Following consultations on this matter, Turkey acknowledged that the practice was incompatible with Article III GATT and agreed to equalize any tax imposed on box office revenues.20
Second, Article 3.7 of the DSU provides that ‘[b]efore bringing a case, a Member shall exercise its judgment as to whether action under these procedures would be fruitful.’ It stresses that ‘[t]he aim of the dispute settlement mechanism is to secure a positive solution to a dispute’ and concludes that ‘[a]
Third, if the parties agree to do so, they can resort to good offices, conciliation, and mediation to settle a dispute.21 A party can request good offices, conciliation, and mediation at any time. Under this mechanism, the Director-General, acting in an ex officio capacity, may help members settle a dispute. As Lester explains, ‘[t]aking all of these provisions into account, it is clear that the DSU as it is currently written is designed to facilitate the settlement of disputes between members, and provides many opportunities to do so.’22
Negotiation is based on cooperative and interest-based approaches. In abstract terms, it creates a situation where the parties cooperate to reach a satisfactory result. The parties can often reach an agreement if they consider their underlying interests. Negotiation may also produce more successful outcomes than the adversarial ‘winner takes all’ approach.23 Negotiation has proven to be a strategic tool to enhance cultural heritage protection while allowing economic activities. For instance, when the Yellowstone National Park, which is a World Heritage Site, was added to the Danger List in 1995 due to the proposed development of a gold and copper mine three miles outside the Park boundary, negotiation allowed the US government to eliminate the threat to the Park, by creatively proposing a land swap to the investor.24
Similarly, in Germany, after strenuous litigation before national courts, a local community was able to negotiate the relocation of a fortified ancient church as part of an investment deal.25 By the end of 2008, the town of Heuersdorf in Saxony had to make way for a lignite mine, to fuel a nearby power plant.26 Although the local inhabitants could not save their village, they saved the 750-year-old Emmaus Church (Emmauskirche) by relocating it to the nearby town of Borna. The US mining company had the chance to exploit its investment, albeit ultimately agreeing to pay the transplantation costs.27
Conciliation and mediation may also play a useful role in cultural heritage-related disputes. Where the degree of animosity between the parties is so great that direct negotiations are unlikely to lead to a dispute settlement, the intervention of a third party to reconcile the parties may be very practical.28 In this sense, several institutions provide the setting for conciliation, including UNCITRAL, the ICC, and the ICSID, although conciliation has been used sparingly. At the WTO, conciliation may be requested by any party at any time.29
Mediation of cultural heritage-related disputes is also possible.30 Mediation involves the good offices of a neutral third party which facilitates communication between the discussants.31 Like negotiation, mediation is guided by the goal of finding a win-win situation for all parties through a process that focuses on the interests of the parties rather than on their positions and searches for creative alternatives to solve the dispute. The Multilateral Investment Guarantee Agency (MIGA), a member of the World Bank Group, has mediated disputes between investors on the one hand and host states on the other hand, to help resolve investment claims resulting from state measures. The satisfaction of both parties is maximized, as the settlement constitutes a more-than-zero sum game. As mediators do not have the authority to make a binding decision and do not follow a fixed procedure, they may promote flexible and dynamic dialogue. Furthermore, mediation might involve the participation of other stakeholders.32
ADR methods present a number of intrinsic advantages. First, they usually achieve results in a short time frame. Second, they are not required to deal with the past: they ask the parties to look at their future and reshape their rights and responsibilities toward each other. Third, the parties participate in the decision-making process that will ultimately affect them. In these proceedings, all the different interests concerned are disclosed and discussed. Experience shows that agreements entered into through a voluntary process stand out
However, ADR methods also present some limits. First, the confidential nature of these methods makes documenting their use and lessons learned difficult.33 Second, the parties to a given dispute may be ‘disinclined to subject disputes between them’ to ADR mechanisms ‘primarily because bureaucracies, governmental and corporate, may be reluctant to assume responsibility for accepting the provisions of a mediated settlement which afford them less than their publicly voiced demands’.34 Third, while ADR methods can be useful in those situations where both contracting parties have equal or similar bargaining power, such methods do not seem to be advisable when there are power asymmetries. This is particularly the case when the cultural heritage in question is associated with Indigenous peoples and minorities, for such groups have often been disregarded by the relevant state authorities in the race to attract foreign investment.35 Without adequate safeguards, ADR may fail to address power imbalances. Furthermore, in prioritizing the interests of the parties present, there is a concern that ADR methods cannot adequately ensure that the disputes are settled ‘in conformity with the principles of justice and international law’ including ‘universal respect for, and observance of, human rights and fundamental freedoms for all’.36
Next, from a political science perspective, the specter of a potential dispute with a powerful investor can exert a chilling effect on a government’s decisions to regulate in the public interest. For instance, in 2002, a group of mainly foreign-owned mining companies threatened to commence international arbitration against the government of Indonesia in response to its ban on open-pit mining in protected forests.37 Six months later, the Ministry of Forestry agreed to change the forest designation from protected to production forests.38 In this problematic context, a legal approach is very much needed.
However, ADR mechanisms should not be seen as a tool for diluting states’ obligations under international law or as a delaying tactic. In some cases, it may be better to have recourse to arbitration or litigation because the resulting outcome can contribute to the development of international (economic) law and can inhibit further spurious claims on the part of the claimant, or illegal misconduct on the part of the respondent.41 Finally, ADR mechanisms are not suitable when there is uneven bargaining power between the parties.
2.2 Conflict and Reconciliation of Norms
International law offers a fertile ground for overlapping norms and conflicting obligations. The multitude of lawmakers and the constellation of courts and tribunals contribute to making international law a vibrant legal system accommodating new fields and actors. The increased proliferation of treaties and the specialization of different branches of international law make some overlapping between the latter unavoidable. At the same time, the chaotic and incremental nature of international law facilitates the potential for conflicts of norms. Although conflicts have been traditionally perceived negatively – as a source of separation or a struggle for definite dominance – the potential for conflicts of norms is inherent in every legal system.42 Provided that conflicts are successfully managed, they can foster positive change and strengthen the legal order.43 Reconciling seemingly opposing interests, as expressed in norms, can increase the legitimacy and strength of the legal system.
The act of reconciling conflicts, or of perceiving them as compatible, entails a complex interpretative process. Some scholars question whether norms belonging to different international law subsystems are truly comparable.
However, one may wonder whether a holistic approach might be preferred. Not only would such an approach bring coherence to international law, but it would also favor the ‘humanization’ of the same.45 Considering international public law as a ‘universe of interconnected islands’ may have a positive impact on economic globalization, promoting economic, social, and cultural development.46 While it is not possible to contest the importance of protecting aliens and traders in international law, it is important to keep in mind that economic interests do not receive absolute protection but may be limited for legitimate reasons in most legal systems.
Even if we accept the assumption that property rights are human rights, the very idea of granting these rights makes it necessary to limit their exercise in situations where such exercise would collide with the rights and protected interests of others. For instance, according to the European Convention on Human Rights, property rights can be limited to the extent necessary ‘to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties’.47 Owners have not only rights but also obligations. This is particularly true with regard to the protection of cultural heritage. In case of conflict between state obligations concerning cultural heritage and investors and traders’ rights, adjudicators will be called on to balance these interests through a procedure similar to that established and consolidated by human rights bodies and national constitutional courts.
There may be both apparent conflicts and conflicts in the applicable law. Apparent conflicts indicate those conflicts that are avoidable according to the time-tested criterion of presumption of conformity in the cumulative
However, other conflicts may have a genuine nature. Genuine or material conflicts of norms include two species of conflicts: inherent normative conflict and conflict in the application of the relevant norm. When a norm constitutes, in and of itself, a breach of another norm, there is an inherent normative conflict. A conflict in the application of norms arises when a party to two treaties cannot simultaneously comply with its obligations under both treaties; compliance with one norm entails noncompliance with the other.50 With regard to the relationship between the protection of cultural heritage and the promotion of trade and FDI, inherent normative conflicts, albeit theoretically conceivable, will rarely if ever appear in practice. Instead, both apparent conflicts and conflicts in the applicable law have often arisen in the context of cultural heritage-related trade and investment disputes. Often, conflicts in the application of norms arise because conflict prevention and management of apparent conflicts have not been attempted or have failed. Thus, both kinds of conflict deserve scrutiny, and theoretical effort is needed to reconcile the relevant interests.
The Vienna Convention on the Law of Treaties establishes a framework that governs the interplay between different international law rules. In particular, it addresses three different relationships: (1) the relationship between two or more treaties relating to the same subject matter; (2) that between a treaty and jus cogens; and (3) that between a treaty and other relevant rules of international law.
Whenever two or more norms deal with the same subject matter, generally accepted techniques of interpretation and conflict resolution in international
However, such general rules may not be wholly adequate to govern the interplay between treaty regimes, because international economic law and international cultural heritage law do not exactly overlap nor does the one contain the other. Rather, they have different scopes, aims, and objectives.53 In particular, international economic law aims to govern economic relations between states as well as between these and alien economic actors. It aims at fostering peaceful and prosperous relations among nations. International cultural heritage law is a more recent branch of international law that has been codified since the end of WWII. It aims at governing the international dimension of cultural phenomena, safeguarding heritage, and promoting the restitution of stolen cultural goods. International cultural heritage law can promote cultural cooperation and mutual understanding among nations, thus contributing to international peace and security.
There is no hierarchical relationship between international economic law and international cultural heritage law. The relevant UNESCO instruments do not set out a hierarchical relationship between international cultural heritage law and other components of public international law.54 Unless a cultural norm constitutes jus cogens, it is difficult to foresee and govern the interaction between different legal regimes.55
The Vienna Convention on the Law of Treaties defines jus cogens as ‘a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’.56 While this provision sets a legal framework on how peremptory norms work, it does not specify which norms belong to jus cogens.57 In fact,
Concerning the relationship between a treaty and jus cogens norms, Article 53 of the VCLT states that a treaty shall be void ‘if, at the time of its conclusion, it conflicts with a peremptory norm of general international law’. In parallel, Article 64 of the VCLT provides that ‘if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.’ Accordingly, if an international economic law treaty conflicted with a peremptory norm, it would be null.62 Alternatively, some argue that any violation of peremptory norms would automatically annul any contrary treaty provisions.63 However, this conclusion is not supported by the VCLT which provides that ‘[i]n cases falling under Articl[e] … 53, no separation of the provisions of the treaty is permitted.’64
However, the hypothesis that investment treaties, WTO-covered agreements, or some of their norms are incompatible as such with jus cogens seems an overstatement. International investment treaties and the WTO-covered agreements generally include vague and open-ended provisions, giving states parties flexibility in the implementation of their international economic law obligations. Because of the character of international economic law and the subject matter it covers, it is difficult to envisage a direct conflict between
With regard to the relationship between a treaty obligation and other international agreements, international law comes into play under Article 31(3)(c) of the VCLT, which provides that the treaty interpreter shall take into account ‘any relevant rules of international law applicable in the relations between the parties’.65 Pursuant to Article 31(3)(c) of the VCLT, ‘[e]very treaty provision must be read not only in its own context, but in the broader context of general international law, whether conventional or customary.’66 International law should guide the interpretation of international economic law. Accordingly, Article 31(3)(c) of the VCLT reflects a principle of integration, emphasizing the unity of international law and requiring that rules should not be considered in isolation from general international law.
2.3 The Applicable Law
Deciding cases according to equity has a long history in international adjudication67 and might be fruitful in cases dealing with cross-cutting themes.68 Nonetheless, the parties often prefer adjudicating their disputes on the basis of law rather than equity because equity is perceived as leading to uncertain and unpredictable outcomes, operating outside of the law (extra legem) or overcoming the law (contra legem).69 While arbitral tribunals may be asked to adjudicate cases on the basis of equity (ex aequo et bono), this is not possible at the WTO.
Within the WTO dispute settlement system, the sources of law are given by the covered agreements, customary law, and general principles of law, as well as judicial decisions and the teachings of the most qualified jurists as ‘subsidiary means for the determination of rules of law’.71 The principal sources of WTO law are the Marrakesh Agreement Establishing the World Trade Organization, the WTO-covered agreements, and the international agreements they incorporate by reference.72 WTO courts rarely use the term ‘applicable law’ because they basically apply the detailed provisions of the DSU and the covered agreements.
The question as to whether, and if so to what extent, other international agreements not referred to in a WTO agreement can be a source of international trade law is a controversial issue. Can other such treaties provide rights and obligations for states that can be invoked before international economic courts? Some scholars including Picone, Ligustro, and Francioni argue that international economic courts have incidental jurisdiction, that is, the possibility to incidentally apply other treaties.73 According to this view, international economic courts have the inherent powers to briefly
Yet, one of the main functions of the WTO dispute settlement system is maintaining ‘a proper balance between the rights and obligations of Members’77 under the covered agreements and ‘clarify[ing] the existing provisions of those agreements in accordance with customary rules of treaty interpretation.’78 The DSU explicitly cautions the panels and the AB against judicial activism: in fact, ‘in their findings and recommendations, the panel and the Appellate Body cannot add to or diminish the rights and obligations provided in the covered agreements.’79 As ‘the covered agreements are full of gaps and constructive ambiguity, there is much need for clarification of the existing provisions.’80
The DSU explicitly refers to customary international law on treaty interpretation and makes it applicable in the context of WTO adjudication.81 Questions remain as to the applicability of other rules of customary international law.82 As the panel held in Korea—Procurement, ‘[c]ustomary international law applies generally to the economic relations between the WTO Members. Such international law applies to the extent that the WTO treaty agreements do not “contract out” from it.’83 The WTO courts have frequently referred to customary international law in their jurisprudence.84 As mentioned in Chapter 1, several norms requiring the protection of cultural heritage in times of war have achieved customary law status and have also been codified in widely ratified treaties.85 In addition, customary norms of international law requiring the protection of cultural heritage in times of peace are also emerging and have been codified in widely ratified UNESCO conventions and human rights treaties.86 Moreover, various jurisdictions have repeatedly acknowledged the customary nature of the obligations contained in such instruments.
General principles of law are also ‘sources of law applicable in WTO adjudication.’87 Like customary international law, they fill the gaps left by treaties.88 WTO courts have often used general principles of law ‘as a basis for their rulings or in support of their reasoning.’89 For instance, several reports
If equity is not a source of international law of its own under Article 38 of the ICJ Statute, it can be considered a general principle of law requiring adjudicators to fill the gaps in the law or concretize the open-endedness of its norms.91 It enables adjudicators to decide the merits of an admissible case even in the absence of suitable law, the vagueness or ambiguity of rules, or inconsistencies in the law. Recourse to equity within the law enables adjudicators to reach decisions, thus avoiding non liquet and contributing to the development of international law.92 Most IIA s include the fair and equitable treatment standard, and equitable considerations are thus built within the structure of international investment law. In any case, the principle of equity should not be interpreted as merely protecting the interests of investors and traders. Rather, this concept requires balancing opposing interests and values.93
As Mavroidis highlights, ‘in WTO adjudication, general principles of law have been used extensively, though in most cases as interpretative elements for the sources of WTO law.’94 In theory—but as yet, not in practice—general principles could be used as factors for inserting cultural concerns into the fabric of international economic law, as general principles of law already require the protection of significant cultural heritage and elements of cultural diversity. In the context of cultural heritage-related disputes, the principle of intergenerational equity might well come into play. This principle posits that every generation holds natural and cultural heritage in common with members of the past, present, and future generations. Accordingly, this principle requires generations not to consume the stock of natural and cultural resources but to use and safeguard such heritage responsibly, thus ‘meet[ing] the needs of the present without compromising the ability of future generations to meet
Investment disputes are to be resolved on the basis of law unless the parties have expressly agreed otherwise.97 The sources of international investment law include treaties, customary law, general principles of law, and subsidiary sources of law. While international investment agreements tend to be the principal source to be applied in investment treaty disputes, arbitral tribunals also generally refer to general principles and customary law in their jurisprudence. For instance, with regard to customary international law, the Grand River Tribunal could not ‘avoid noting the strong international policy and standards articulated in numerous written instruments and interpretative decisions that favor state action to promote … [the] rights and interests of Indigenous peoples’.98
Several BIT s contain a composite choice of law clause, typically including treaty rules, host state law, and customary international law. For instance, the 2012 US Model BIT99 provides that in certain cases, ‘the Tribunal shall decide the issues in dispute in accordance with this treaty and applicable rules of international law.’100 The USMCA similarly states that ‘the Tribunal shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law.’101 For cases brought before ICSID, the ICSID Convention provides that a tribunal will apply the law selected by the parties or, in the absence of such a choice, the law of the host country and such principles of international law as are applicable.102
Such clauses do not generally extend the jurisdiction of the arbitral tribunals. Arbitral tribunals are of limited jurisdiction and cannot adjudicate
If the jurisdictional mandate of an arbitral tribunal is clearly limited, why have treaty-makers inserted clauses referring to ‘applicable rules of international law’? Persuasively, eminent authors have argued that international law should always apply, as either national law is consistent with it, or if it is not, then international law supersedes national law.107 When the constitution of the host state opts for monism granting primacy to public international law, the latter permeates the law applicable to the contract. Even in states that adopt the dualist theory and require international law to be ‘translated’ into domestic law, arbitrators apply norms of international law when they apply the national norms which convey them. As Professor Kreindler points out, ‘Thus, even where the parties have not agreed, directly or indirectly, to the application of international law “rules” or “principles”, international law may already be internally applicable as part of the domestic law chosen by the parties.’108
For instance, in Maffezini v. Spain, the choice of law clause in the Argentina– Spain BIT109 expressly mentioned the applicability of the law of the host state.110 In this case, an Argentine investor complained, inter alia, that the Spanish authorities had pressured the company to invest before the Environmental
If the host state that is party to the investment treaty dispute has ratified a relevant UNESCO Convention, the pertinent provisions of the given UNESCO Convention would become relevant. In the Glamis Gold case, the fact that the US is a party to the WHC was of relevance; the arbitrators took the WHC into account when considering the protection that the US afforded to Indigenous cultural heritage, citing Article 12 of the WHC. The Tribunal pointed out: ‘The Convention makes special note that the fact of a site’s non-inclusion on the register does not signify its failure to possess “outstanding universal value.”’112 The Tribunal thus upheld the legitimacy of California’s regulation protecting Indigenous cultural heritage. The Parkerings Tribunal also referred to the WHC, to which Lithuania was a party, to establish whether there was any likeness between two competing projects.113 The Tribunal considered that a world heritage site differed from other areas, because the former had outstanding and universal value while the latter did not. It thus concluded that the Municipality of Vilnius had legitimate reasons to prefer the Dutch project (that would build a parking area far from the Cathedral) to the Norwegian project (that would have built the parking area under the church) because the former prevented any damage to the world heritage site.
If the relevant treaty provision directs the arbitral tribunal to apply domestic law, some scholars have pointed out that a state could bring a counterclaim against an investor for breach of the domestic (cultural) law.114 Investors’ obligations can arise out of domestic law.115 Analogously, if a given investment treaty protects only investments made ‘in accordance with the laws’ of the
What seems clear is that arbitral tribunals require substantiation of cultural claims: the Grand River Tribunal affirmed that it was ‘respectful of the cultural patterns that inform business relations among First Nation peoples’ and did not question that ‘the written or unwritten laws of Indigenous peoples could be the basis for establishing an enterprise for the purposes of NAFTA.’117 However, it required evidence of this law: ‘mere assertions of the existence of Seneca law and custom, just as mere assertions of other forms of law, are not enough.’118 Similarly, when the Arbitral Tribunal examined whether a norm of customary law requires governmental authorities to consult Indigenous peoples on governmental policies significantly affecting them, it recalled the number of international law instruments mentioned by the claimants which feature such a norm.119
Another substantive point that deserves further investigation is the interplay between international economic law and peremptory norms of international law (jus cogens). One may legitimately wonder whether international economic courts can shy away and limit the focus of their analysis to economic matters only when peremptory norms of international law are relevant. In the infamous 1857 judgment, Dred Scott v. Sandford,120 the US Supreme Court held that the Bill of Rights protected the right of slaveholders to their property, including slaves. The Court did not focus on the rights of the individuals affected by slavery, a crime against humanity. Far from responding to emerging societal needs of equality and freedom, on that occasion, not only did the Court miss an opportunity, but it also contributed to the unrest that eventually led to the 1860–1865 American Civil War. Analogously, by closing the doors to peremptory norms of international law or transnational public policy and focusing on economic matters only, international economic courts risk undermining the unity of international law and the cogency of human dignity, thus contributing to international conflicts.
Whereas public policy reflects the fundamental principles of a given society,121 transnational public policy (or ordre public international) reflects the fundamental interests and values of the international community. Transnational public policy refers to those principles that receive an international consensus as to universal standards122 and includes laws with a higher status than the ordinary rules of international law (jus cogens).123 Rather than being an autonomous source of international law, transnational public policy expresses a type of norm of superior quality that can be endorsed in any of the typical sources of international law, be they customary, treaty, or general principles of law.
As to the content of transnational public policy, this is generally identified in the prohibition of apartheid, drug trafficking, corruption, slavery, piracy, and terrorism.124 Arbitral tribunals have stressed that some caution is needed to ‘check the objective existence of a particular transnational public policy rule’ and have generally identified such norms by looking at international conventions, state practice, comparative law, and the jurisprudence of international courts and tribunals.125
While the relationship between jus cogens and transnational public policy remains to be fully explored, the two notions seem to overlap to a certain extent. According to some scholars, peremptory norms constitute the international public order: ‘International jus cogens and international public policy are synonyms.’126 Certainly, several international public policy norms have acquired jus cogens status and go beyond the traditional physics of international law. Not only are such norms ‘of greater specific gravity than others’,127 but they seem to include a metaphysical component, the idea that they are so fundamental to the common good as to pre-exist and trump any contrary norm. Transnational public policy and peremptory norms insert a hierarchy
Within the WTO, peremptory norms are often dealt with informally: should a dispute arise, WTO Members can make use of the public morals exceptions (under GATT Article XX(a), or GATS Article XIV(a), respectively) or the security exception (under GATT Article XXI).131 By contrast, older IIA s do not include such general exceptions. Only in the past decades have such GATT-style provisions become common in investment treaties.132 However, this does not mean that transnational public policy has not been relevant in international investment law and arbitration. Moreover, exceptions could shrink, rather than expand, states’ discretion.133
This section investigates how transnational public policy can accommodate cultural concerns and thus constitute a tool for inserting cultural concerns in the operation of international investment law and arbitration. The discussion is also relevant for gradually expanding the concept of public morals, which WTO courts interpret as including elements of public order in the operation of international trade law.
Within international investment law and arbitration, transnational public policy always applies irrespective of whether a specific treaty provision mandates it or not. In fact, because transnational public policy aims at maintaining the integrity of the international legal order, it must always apply.134 As noted by Douglas, ‘[t]he concept of international public policy vests a
This section proceeds as follows. First, it highlights that some norms belonging to international cultural heritage law may present a peremptory character and thus are applicable in the context of cultural heritage-related international economic disputes as a matter of transnational public policy. Second, this section briefly examines how transnational public policy has operated in theory. Finally, the section concludes discussing how transnational public policy operates in practice.
2.4.1 The Emergence of an Ordre Public Culturel
Some elements of international cultural heritage law have the character of jus cogens or may acquire it, because of the dynamic nature of jus cogens. In fact, new peremptory norms may arise and may modify the existing rules.139 Jus cogens already includes self-determination, the prohibition of apartheid and discrimination, and core elements of cultural rights. Because jus cogens is dynamic, it can expand to include the prohibition of cultural genocide. In any event, peremptory norms relating to the protection of human rights and cultural heritage already constitute part of transnational public policy and form a distinct ordre public culturel.
The systematic violation of Indigenous Peoples’ cultural identity and their right to determine their economic, social, and cultural development can violate their right to self-determination140 and ultimately lead to the cultural genocide
Respect for the principle of self-determination ‘is one of the purposes of the United Nations’ and ‘one of the basic principles of international law’142 This principle is also commonly regarded as an erga omnes obligation,143 if not a ‘peremptory norm of general international law’.144 As is known, the right to self-determination certainly belongs to customary international law, but it is also part and parcel of positive law as Articles 1 of the ICCPR and the ICESCR reaffirm the right to self-determination. Both provisions clarify that international economic cooperation is ‘based upon the principle of mutual benefit … and international law’ and that ‘in no case may a people be deprived of its own means of subsistence.’145 While some countries were reluctant to recognize the right of Indigenous peoples to self-determination because they feared that such recognition could affect state sovereignty, in the end, the UNDRIP has recognized that Indigenous peoples have the right to self-determination.146 This provision is generally interpreted as recognizing internal self-determination, that is, the right of Indigenous peoples to make meaningful choices in matters of concern to them, and to enjoy some autonomy within the existing state.147 If one considers self-determination to be a norm of jus cogens, the fact that Indigenous peoples exercise internal self-determination does not make it a lesser right. In this regard, UNDRIP requires states to consult and cooperate in good faith with Indigenous peoples
If arbitral tribunals failed to consider customary law norms of jus cogens status protecting the inherent rights of Indigenous Peoples, this would not depose favorably on the quality and overall viability of such jurisprudence. From a post-colonial perspective, the absence of concern for Indigenous peoples’ right to self-determination would risk replicating colonial patterns of dispossession. More fundamentally, such jurisprudence would be at odds with emerging jurisprudence of regional human rights courts and the quasi-jurisprudence of UN human rights treaty bodies.
Over the past thirty years, there has been a robust development of jurisprudence regarding the cultural, land, and resource rights of Indigenous peoples under international law.150 Such jurisprudence generally emphasizes Indigenous peoples’ unique and enduring relationship to their land.151 For Indigenous peoples, ‘the ability to reside communally on their lands … is inextricably tied to the preservation of communal identity, culture, religion, and traditional modes of subsistence.’152 As the Inter-American Court of Human Rights explained, not only does land constitute the principal means of subsistence for Indigenous peoples, but it also shapes their cultural identity:153 the close ties of Indigenous peoples to the land ‘must be recognized and understood as the fundamental basis for their cultures, their spiritual life, their integrity, and their economic survival.’154
The prohibition of racial discrimination constitutes a norm of jus cogens. For instance, GATT Article III requires that municipal regulation affecting trade must not discriminate across domestic and imported like products. Can a WTO member prohibit the sale of racist papers under international trade law? The best view would require considering racist and non-racist papers as different products; accordingly, any regulation distinguishing the two products would necessarily be in full conformity with GATT Article III. But even if consumers considered racist and non-racist papers to be like products, and thus regulation distinguishing such products resulted in a violation of GATT Article III, the WTO member ‘might, if challenged, invoke jus cogens under GATT Article XX’.159 In parallel, an Arbitral Tribunal held that the domestic law of an Arab country that discriminated against and boycotted companies with business in Israel was contrary to international public policy. According to the Tribunal, such law implicated religious and racial discrimination and thus was inapplicable to the dispute on transnational public policy grounds.160
Some advocates of Indigenous Peoples’ rights are increasingly conceptualizing the violations of such rights as ‘cultural genocide.’163 However, although cultural genocide has been a persistent international legal issue, international law remains impervious to the same.164 International law does not formally recognize the concept of cultural genocide, even though international lawyers have coined the term and investigated it for decades. Defined as ‘the purposeful weakening and ultimate destruction of cultural values and practices of feared out groups’,165 the idea of ‘cultural genocide’ was famously elaborated by the Polish lawyer Raphael Lemkin (1900–1959) in the aftermath of WWII. Because ‘what makes up a group’s identity is its culture’, Lemkin believed that ‘the essence of genocide was cultural.’166 His unpublished works examined the linkage between colonialism and genocide.167 Some authors have looked
Nonetheless, the concept of cultural genocide was not included in the Genocide Convention, which limits its definition of genocide to violence committed ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.’170 In the Genocide case,171 Bosnia and Herzegovina alleged, inter alia, that the Serbian forces’ attempt ‘to eradicate all traces of the culture of the protected group through the destruction of historical, religious, and cultural property’ amounted to a form of genocide under the Genocide Convention.172 The Court considered that there was ‘conclusive evidence of the deliberate destruction of the cultural and religious heritage of the protected group’.173 However, in the Court’s view, the destruction of cultural heritage ‘d[id] not fall within the categories of acts of genocide set out in Article II of the [Genocide] Convention’.174
Reportedly, the inclusion of cultural genocide as part of the Genocide Convention was contested by States fearing prosecution for their treatment of minorities and Indigenous peoples.175 Although Indigenous peoples can be comprehended under the definition of ‘national, ethnical, racial or religious groups’ that must be protected against genocide, the Genocide Convention is inapplicable whenever the intention to physically destroy the group is lacking.176 Analogously, a draft provision on cultural genocide was debated during the travaux préparatoires of the UNDRIP, but ultimately not included in its text.177 Nonetheless, the UNDRIP substantially prohibits such genocide, recognizing that
Finally, the prevention of illicit trafficking of cultural property is linked to the prevention of terrorism and the maintenance of international peace and security. The prohibition of terrorism and piracy are classic examples of jus cogens and grounds of transnational public policy. Even before the UN Security Council adopted specific resolutions linking the safeguarding of cultural heritage to the maintenance of peace and security, domestic courts have highlighted the existence of ordre publique culturel relating to the prevention of illicit trafficking of antiquities and the restitution of cultural property to the state of origin.179 In fact, the existence of such ordre public culturel has been established by referring to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, even before its ratification by the relevant parties. The municipal courts thus considered that this international Convention contained ‘general principles capable of nourishing the international public order of States which had not ratified [it]’.180
For instance, the Swiss Supreme Court recognized the existence of international public order in the field of cultural property in cases concerning the restitution of cultural goods.181 The regulatory framework protecting such goods against looting is deemed to express the international public order: ‘When, as in this case, the request relates to the return of cultural property, the … judge must be careful to take into account the interest of the international community … tied to the protection of cultural property. These standards, which derive from a common inspiration, constitute … the expression of an international public order in force or in formation … these norms … concretize the imperative of an effective international fight against trafficking in cultural property.’182
2.4.2 Transnational Public Policy in Theory
Arbitrators are bound to apply relevant peremptory norms of international law whether or not they are pleaded by the parties. The question is not whether to add new claims to those articulated by the parties but to apply the law.186 The applicable law and the principle of not deciding issues beyond the parties’ claims (nec ultra petita) are two different issues. The applicable law concerns the body of law that applies to the dispute. The principle of nec ultra petita concerns the claims raised by the parties but does not lessen the importance of mandatory rules applicable to the dispute. As Jan Paulsson puts it, ‘a tribunal in an investment dispute cannot content itself with inept pleadings, and simply uphold the least implausible of the two’.187 As the Permanent Court of International Justice once held, an international tribunal is ‘deemed itself to know what [international law] is’.188 Such an approach does not amount to arbitral law-making, but recognizes that arbitrations do not occur in a vacuum. Rather, they contribute to the development of international law and must conform to its basic rules.
In fact, transnational public policy imposes positive duties on arbitrators: ‘[a]ny tribunal owes an obligation to the international community to apply international public policy’ and ‘the faithful application of public order would acquit a tribunal of its obligations to the parties to apply the law chosen by them through compromise or otherwise, but nothing can acquit a tribunal of its mandate to apply public policy.’191 In other words, arbitrators ‘have the right – and even the obligation – to themselves raise the issue of whether disputed contracts or legal provisions before them satisfy the requirements of international public policy.’192 Kreindler also highlights the fact that ‘[t]he arbitrator[s] need not apply the agreed or determined governing law if doing so would cause [them] to violate international public policy.’193
Human rights norms could be conceptualized as ‘part of transnational public policy’: ‘[t]o the extent that human rights protection constitutes a core part of international or national public policy, human rights aspects must be considered by the tribunal.’194 Arbitrators can raise ‘an issue of blatant violation of fundamental human rights deemed to be incompatible with transnational public policy’.195 International public policy is a flexible and dynamic concept that could be used as a corrective mechanism or as a tool to balance complex and often conflicting goals.
Traditionally, public policy has played a negative role by preventing the recognition of arbitral awards that breached it.196 Arbitral tribunals must render
With regard to investment arbitration, ICSID awards are truly delocalized. Indeed, the ICSID Convention excludes any attack on the award in the national courts, and ICSID awards are final and self-executing.201 However, this does not mean that arbitrators should not respect international public policy. The arbitral tribunal must observe international law under Article 42 of the ICSID Convention.202 Giardina rightly points out that the fact that ICSID awards are recognized and enforced as binding on all states that are parties to the relevant agreements requires their necessary compliance with international law. Thus, respect for public international law and international public policy would be an implicit prerequisite of ICSID awards.203 If an ICSID award were contrary to peremptory norms of public international law, the national court would be obliged not to execute it because of its noncompliance with the transnational public order. If a contracting state failed to abide by and comply with the award rendered, the state of the foreign investor could decide to bring an international claim on behalf of the investor before the ICJ. However, diplomatic protection would be an unlikely discretionary move on the side of the home state. Therefore, this possibility does not constitute a strong disincentive to refuse execution due to international public order concerns. In general, to avoid subsequent challenges in terms of annulment proceedings and non-enforcement of arbitral awards,
2.4.3 Transnational Public Policy in Practice
International courts and tribunals have adopted a restrictive approach to the interpretation and application of transnational public policy and jus cogens to avoid their political misuse. The revolutionary nature of jus cogens has been ‘domesticated’ by voluntarist views according to which international law is based on the consent of states. While the conceptual vocabulary of jus cogens has found its way into international law, the judicial practice remains dominated by voluntarism, especially when state prerogatives are at stake.204
Arbitral tribunals have held that investors cannot invoke jus cogens as an independent cause of action, as arbitral tribunals have limited jurisdiction.205 Analogously, when such jus cogens arguments have been raised by third parties, mainly non-governmental organizations (NGO s) intervening in the arbitral proceedings as amici curiae, arbitral tribunals have tended to dismiss such arguments as irrelevant.206 The mere reference by the host states to jus cogens has not been enough to lead arbitral tribunals to accept such arguments. In fact, some arbitral tribunals have dismissed such arguments considering that they had not been fully pleaded. Other tribunals have merely alluded to the jus cogens arguments as advanced by the host state incidentally without deeming it necessary to take a stance on the matter.
In several arbitrations brought against Argentina in the aftermath of its financial crisis, the host state raised human rights and jus cogens-related arguments to justify the measures adopted to cope with the crisis. In a nutshell, the state argued that it had some duties of status higher than economic duties. For instance, in EDF v. Argentina,207 the respondent argued that the measures adopted to cope with its financial crisis were justified by human rights concerns.208 In particular, Argentina argued that fundamental human rights
In some cases, the arbitral tribunals did not substantively address jus cogens arguments, finding that they had not been fully argued. For instance, in Azurix v. Argentina, an ICSID case concerning water and sewage systems, Argentina raised the issue of the compatibility of the BIT with human rights treaties. It argued that ‘a conflict between a BIT and human rights treaties must be resolved in favor of human rights because the consumers’ public interest must prevail over the private interest of service providers.’213 The Tribunal dismissed this argument, finding that it had not been fully argued.214 In Siemens v. Argentina, Argentina claimed that given its financial crisis, the full protection of the property rights of investors would jeopardize its compliance with human rights obligations.215 The Tribunal, however, held that the argument had not been developed and that ‘without the benefit of further elaboration and substantiation by the parties, it [wa]s not an argument that, prima facie, b[ore] any relationship to the merits of this case.’216 Analogously, in CMS Gas v. Argentina, despite Argentina’s arguments that given the country’s economic and social crisis, the performance of specific investment treaty obligations violate constitutionally recognized rights,217 the Arbitral
As Reiner and Schreuer point out, ‘[t]hese awards seem to indicate the tribunals’ reluctance to take up matters concerning human rights, preferring to dismiss the issues raised on a procedural basis rather than dealing with the substantive arguments themselves.’219 Admittedly, some of these arbitrations involved human rights, the peremptory character of which is uncertain. In some arbitrations, the host states have preferred to refer only to domestic constitutional provisions rather than relying on the alleged jus cogens nature of the rights involved. This is not surprising, as such pleadings may be considered to contribute to state practice, and states are very careful in invoking jus cogens as the same arguments could be used against them in other contexts.
Nonetheless, one may wonder whether such an approach is overly restrictive. In fact, human rights treaties recognize ‘a set of core rights from which no derogation is permitted not even during times of public emergency.’220 For example, according to the Committee on Economic, Social, and Cultural Rights, if a state did not provide its population with essential food, primary healthcare, and the most basic forms of education, it would breach its obligations under the ICESCR. As Verdross argued almost a century ago, ‘a state cannot be bound to close its schools, universities or courts, to abolish its police or to reduce its public services in such a way as to expose the population to the dangers of disorder and anarchy, in order to obtain the necessary funds for the satisfaction of foreign creditors.’221
Other tribunals have adopted a more sensitive approach to human rights issues. For instance, in Sempra v. Argentina, the Tribunal acknowledged that the dispute ‘raise[d] the complex relationship between investment treaties, emergency, and the human rights of both citizens and property owners.’222 Regardless, it found that ‘the real issue in the instant case [wa]s whether the
On the other hand, in several cases, arbitral tribunals have declined their jurisdiction on the basis of transnational public policy. In this regard, the operation of jus cogens, in its peculiar interaction with, and articulation as, international public order, can legitimize investor-state arbitration. It can ensure that the most fundamental values of the international community are not violated by either foreign investors or the host states, and indicate how to shape or reform future practice to foster responsible and lawful investments. Adjudicators are in the best position to fulfill the promise of jus cogens, interpreting and applying the various formal sources of international law embodying peremptory norms.227
Public policy has been forcefully asserted in a series of international arbitrations. For example, in the 1875 Maria Luz arbitration, the Czar of Russia, sitting as the sole arbitrator, drew upon public policy in declaring that Japan ‘had not breached the general rules of the Law of the Nations’ in freeing the slaves carried on the Peruvian vessel Maria Luz and denying the subsequent demands for indemnity of the Peruvian citizens.228 In an ICC arbitration,
Similarly, in World Duty Free Company Limited v. The Republic of Kenya,230 the ICSID Tribunal referred to international public policy and did not allow claims based on bribes or on contracts obtained by corruption.231 The Tribunal stated that ‘in light of domestic laws and international conventions relating to corruption, and in light of decisions taken in the matter by courts and international tribunals, this Tribunal is convinced that bribery is contrary to the international public policy of most, if not all states. Thus, claims based on contracts of corruption or contracts obtained by corruption cannot be upheld by this Arbitral Tribunal.’232 According to the Tribunal, transnational public policy protects the public.233 In Inceysa v. El Salvador, the Tribunal concluded that it did not have jurisdiction over the claim brought before it by the investor, as the respondent had not consented to the protection of investments procured by fraud, forgery, or corruption.234 In Plama v. Bulgaria, after finding the claimant in violation of Bulgarian and international law, the Tribunal did not grant the investor the substantive protection under the Energy Charter Treaty.235 In Phoenix Action Ltd v. the Czech Republic, an ICSID Tribunal held that ‘nobody would suggest that ICSID protection should be granted to investments made in violation of the most fundamental rules of protection of human rights.’236
2.5 Treaty Interpretation
International economic law is a creature of international law to be construed in accordance with international law, the system to which it belongs. Because international economic law constitutes an important field of international law, as such, it should not frustrate the aims and objectives of the latter, which
Under the general rule of interpretation, as codified by Article 31 of the VCLT, ‘a Treaty shall be interpreted in good faith.’ The same Article provides that the intentions of the parties are revealed through the ordinary meaning of the terms of the treaty, in their context, and in light of the object and purpose of the treaty.241 Article 32 of the VCLT provides that ‘recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.’ Article 33 of the VCLT deals with the interpretation of treaties authenticated in two or more languages and may be useful when interpreting
Although Article 31 of the VCLT uses mandatory terms, it does not clarify how much weight should be given to each of its elements.242 All of the relevant approaches – textual, contextual, purposive, or teleological – are not set in a hierarchical order; rather, they need to be balanced in a single combined interpretative process.243 As a WTO panel put it, ‘for pragmatic reasons, the normal usage … is to start the interpretation from the ordinary meaning of the raw text of the relevant treaty provisions and then seek to construe it in its context and in the light of the treaty’s object and purpose. However, … text, context, and object-and-purpose … are to be viewed as one holistic rule of interpretation rather than a sequence of separate tests to be applied in a hierarchical order.’244 Therefore, the use of the customary norms of treaty interpretation as restated by the VCLT does not lead to any univocal results or ‘irrebuttable interpretation’245; rather, it leaves the interpreter with ‘considerable flexibility’,246 providing ‘principles of logic and order which both constrain and empower the interpreter’.247
Reference to other international law is possible even for interpreting the text of a specific provision. For example, the WTO AB used a multilateral environmental agreement (MEA) to maintain that sea turtles are an exhaustible natural resource. It did not apply the MEA provision; rather, it interpreted the text of Article XX(g) of the GATT, using the MEA as an interpretative tool. This approach enables international economic courts to construe international economic law ‘in harmony with other rules of international law of which [it] form[s] … part, including those relating to human rights.’248
The purposive or teleological interpretation of treaties is based on the analysis of their object and purpose, which are usually included in their preambles.249 Although preambles are not binding, they must be considered
Certainly, if the preamble of a given treaty refers to sustainable development, which encapsulates a cultural dimension as seen in Chapter 1, it will be possible for international economic courts to take cultural concerns into account. The preamble of the Agreement establishing the WTO refers to the goal of raising standards of living and promoting sustainable development.251 In parallel, the preamble of the TRIPS Agreement recognizes ‘the underlying public policy objectives of national systems for the protection of IP, including developmental and technological objectives.’252 While most BIT preambles are unidimensional, emphasizing the need to foster FDI and promote economic development, several more recent preambles state that investment promotion must be consistent with certain policy goals, including public health, safety, and sustainable development.253
Even where the preamble makes no reference to sustainable development, scholars caution against interpreting the purpose of bilateral investment treaties as merely promoting foreign direct investments.254 One-sided approaches risk politicizing investment disputes ‘and, in the long-run, losing support among states parties.’255 As Berman pinpoints, ‘it would surely be wrong to take too narrow a view of “object and purpose”, for example, by claiming that the object and purpose of investment treaties is to protect the investor … Deducing the object and purpose is specific to the particular treaty under discussion, and does not admit general postulates.’256 As the Amco Tribunal held, ‘the [ICSID] Convention is aimed to protect, to the same extent and with the same vigour,
Under Article 31(3)(c) of the VCLT, the treaty interpreter shall consider ‘any relevant rules of international law applicable in the relations between the parties.’259 Accordingly, ‘Every treaty provision must be read not only in its own context, but in the wider context of general international law.’260 Therefore, this provision properly expresses the principle of ‘systemic integration’ within the international legal system, indicating that treaty regimes are themselves creatures of international law.261
The expression ‘any relevant rules of international law applicable in the relations between the parties’ indicates ‘all sources of international law, including custom, general principles and, where applicable, other treaties’.262 As aptly noted by Sands, for a rule of international law to be taken into account in interpreting a treaty, it must be (1) relevant, that is, related to the treaty norm being interpreted; and (2) applicable in the relations between the parties.263 The WTO panels and the AB have pinpointed that they must consider only those
As Sands points out, ‘the treaty being interpreted retains a primary role,’ while the rule of international law which is relevant and applicable between the parties ‘must be taken into account’.266 International law does not define what taking into account means; Sands explains that ‘the formulation is stronger than “take into consideration” but weaker than “apply.”’267 One may wonder whether ‘taking into account’ is analogous to ‘drawing inspiration’, a formulation that appears in Article 60 of the African Charter,268 enabling the Commission to draw inspiration from international law on human rights as well as ‘from the provisions of various instruments adopted within the Specialized Agencies of the United Nations of which the parties to the … Charter are Members’.269
In any case, the principle of systemic integration creates a presumption that international economic law is to be interpreted consistently with general international law.270 This presumption has both positive and negative dimensions: on the one hand, the parties are to refer to public international law for all questions which are not resolved by the treaty; on the other hand, the parties should not act inconsistently with general international law.271 Systemic thinking contributes to the unity of international law. As the Arbitral Tribunal put it in AAPL v. Sri Lanka,272 BIT s are ‘not a self-contained closed legal system’ but
Therefore, both WTO adjudicative bodies and arbitral tribunals have some interpretative space to consider other international treaties when they collide with international economic law. In fact, customary rules of treaty interpretation require that international cultural heritage law serve as an interpretive context if it is relevant to the interpretation and application of international economic law. This argument is even stronger with regard to the cultural entitlements of a peremptory character.276 Because international economic courts often seem reticent when referring to, let alone considering, such rights, all actors involved—treaty negotiators, arbitrators, academics, civil society, and the parties to a given dispute—should strive to foster such consideration. Only by interpreting international economic law in conformity with international law and fine-tuning its language can international economic law develop its potential to enable peaceful, just, and prosperous relations among nations and contribute to the development of international law.
Nevertheless, treaty interpretation cannot be invoked to displace the applicable law.277 In South American Silver Limited (SAS) v. Bolivia, the Bermudan subsidiary of a Canadian company alleged that the host state expropriated the company’s ten mining concessions near the village of Malku Khota in the Bolivian province of Potosí.278 Bolivia expressly required that the Tribunal ‘interpret the Treaty in light of the sources of international and internal law
The Arbitral Tribunal found that the applicable BIT was ‘the principal instrument by which it [should] resolve the dispute between the Parties.’281 After noting that both parties agreed that ‘Article 31 of the Vienna Convention sets forth the rules of interpretation for the Treaty,’282 it held that as a tool for treaty interpretation, systemic interpretation as restated by Article 31(3)(c) of the Vienna Convention should be applied ‘with caution.’283 The Tribunal recalled Judge Bruno Simma’s warning that ‘systemic interpretation allows for harmonization through interpretation but cannot be used to modify a treaty.’284 It then concluded that its jurisdiction could not ‘be extended to cover other treaties via Article 31(3)(c) of the Vienna Convention if the States have not consented to such jurisdiction.’ In other words, the Tribunal held that it could not ‘alter the applicable law through rules of treaty interpretation.’285
While some argue that little difference exists between the interpretation of a given treaty and its application, these are different, albeit interrelated, processes. While treaty interpretation aims at ‘discovering the proper meaning of treaty terms through various interpreting methods’, treaty application aims at identifying and applying the source of law.286 In other words, Article 31(3)(c) of the VCLT broadens the normative horizons of international economic judges – not their competence. Furthermore, states have agreed on specific dispute settlement mechanisms in the various fields of international law: ‘such intentions would be frustrated if a procedure created for one branch were to be
To sum up, international economic courts have limited jurisdiction. Because of their limited mandate, they cannot adjudicate on the eventual breach of international cultural heritage law. International economic courts are not allowed to decide whether a certain governmental measure is in conformity with other international treaties. They are only permitted to decide whether the measure violates international economic law.
However, this does not mean that international cultural heritage law is and/or should be irrelevant in the context of economic disputes. While being aware of their limited jurisdiction and their specific mandate to interpret the instruments under which they are set up, international economic courts have recognized that the rules which they have the jurisdiction to apply and interpret are not detached from international law. Public international law, including international cultural heritage law, is relevant in the interpretation of international economic law. Adjudicators may analyze the specific claims in light of the relevant rules of international law applicable to the relationship between the parties. For instance, in the case Micula and Others v. Romania, the Arbitral Tribunal considered Article 15 of the Universal Declaration of Human Rights (UDHR)288 in the process of interpreting a BIT’s nationality requirements by referring to Article 31(3)(c).289 In the case Saluka Investments v. Czech Republic, the Arbitral Tribunal took into account the customary international law principle ‘that a deprivation can be justified if it results from the exercise of regulatory actions aimed at the maintenance of public order’ by referring to Article 31(3)(c).290 In Saipem v. Bangladesh, the Arbitral Tribunal took into account the right to a fair trial as a general principle of international law.291
The relevant rules of international law applicable in the relationship between the parties may include international cultural heritage law. Given that UNESCO has an almost universal membership and that some of its
For instance, reference to the relevant UNESCO conventions may be made to clarify the meaning of investment treaty provisions, including the fair and equitable treatment standard and the principle of non-discrimination. In particular, when ascertaining the legitimate expectations of foreign investors, arbitral tribunals should take into account the host state’s obligations under international law. The expectations of foreign investors cannot be legitimate if they disregard the host state’s obligations under international cultural heritage law. Conversely, foreign investors may have legitimate expectations that the host state would comply with the relevant international law.
In parallel, the host state’s obligations under international cultural heritage law may help in establishing the lawfulness of particular expropriatory measures, such obligations constituting evidence of the legitimate objectives of such measures. In SPP v. Egypt, the Arbitral Tribunal took Egypt’s international obligations into account to ascertain the legitimacy of its actions: ‘Clearly, as a matter of international law, the Respondent was entitled to cancel a tourist development project situated in its own territory for the purpose of protecting antiquities. This prerogative is an unquestionable attribute of sovereignty. The decision to cancel the project constituted a lawful exercise of the right of eminent domain.’293 In other cases, the host state’s obligations under international cultural heritage law may help arbitrators distinguish a legitimate regulation from an indirect expropriation. For instance, in Glamis Gold v. United States, the backfilling requirement was deemed to constitute a feature of a legitimate regulation rather than an indirect expropriation due to the state’s right to govern cultural heritage sites.
In addition, the obligations of the host state under international cultural heritage law may help arbitrators to determine whether a given investment is comparable to another one or not, for the purpose of establishing a violation of the non-discrimination principle under the relevant investment treaty.
Article 31(3)(c) also allows space for dynamic or evolutive treaty interpretation. As the content of international law changes and develops continuously, and international investment treaties and the WTO-covered agreements can be considered as living instruments, any approach to interpretation should deal with this dynamism: terms and concepts used in international economic law should reflect the evolution of law.295 An adjudicator’s interpretation cannot remain unaffected by subsequent developments of law; ‘an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of interpretation.’296 For instance, in the Shrimp–Turtle case, the WTO Appellate Body interpreted the term ‘exhaustible natural resources’ in Article XX(g) of the GATT to include living natural resources ‘in the light of contemporary concerns of the community of nations about the protection and conservation of the environment.’297
International economic courts, however, have often adopted a reductionist or minimalist vision of their mandate. Such tribunals have rarely addressed law external to international economic law, as these norms are rarely invoked before international economic courts.298 Even when other international rules are invoked, arbitral tribunals have either dismissed such norms on jurisdictional grounds or mentioned them in passing.299 Even when host states have relied on other international law to justify measures with adverse effects on trade, arguing that their measures were in furtherance
3 De Lege Ferenda
Having analyzed how international economic courts have dealt with cultural heritage disputes, the chapter examines treaty-driven approaches to cultural heritage protection, considering the inclusion of cultural exceptions, amendments, and waivers in international economic law.
3.1 Cultural Exceptions
The importance of the protection of cultural heritage to individuals, communities, nations, and the international community as a whole suggests that policy makers should consider introducing ad hoc provisions, even in international instruments that are not related to the protection of cultural heritage. This treaty-driven approach to promote the consideration of cultural concerns in international economic law would not only strengthen the regulatory autonomy of states in the cultural sector, but it would also help defragment international law. A text-driven approach suggests reform to bring international
Treaty drafters can expressly accommodate the protection of cultural heritage in the text of IIA s or renegotiate existing ones.303 For instance, they can refer to cultural heritage in the preambles, carveouts, exceptions, and annexes of IIA s.304 Preambles can strengthen the state right to regulate and power to adopt cultural policies. Cultural exceptions enable states to derogate from treaty obligations in certain circumstances without incurring liability under international law.305 Interpretative statements can lead adjudicators to be less likely to find treaty inconsistencies in countries’ cultural policies.
Carve-outs can target cultural policies, cultural industries or services, or cultural goods that would normally be covered by the scope of international economic law, excluding them from the scope of one or more provisions for their cultural character. Depending on their formulation, their operation is not to exclude cultural policies, cultural industries or services, or cultural goods from the entire scope of international economic law, but only from that of one or several specific provisions of the same.306
During the negotiations of the Multilateral Agreement on Investment (MAI) under the aegis of the Organization for Economic Co-operation and Development (OECD),307 France and Canada applied for an exception in the area of culture for the protection of national cultural goods. Such a clause would have enabled all parties to follow cultural policies to protect cultural diversity and enterprises dealing with cultural activities. However, since the MAI was perceived as a one-sided instrument unilaterally prepared by OECD countries to ensure higher standards of protection and legal security for foreign investors, the negotiations of this instrument failed in 1998 because of the opposition of
For instance, the Trans-Pacific Strategic Economic Partnership Agreement (Trans-Pacific SEP), which establishes a free trade area between Brunei, Chile, Singapore, and New Zealand (Aotearoa in the Maori language), contains an exception to protect items or specific sites of historical or archaeological value.308 The Trans-Pacific SEP recognizes the need to promote cultural policies aimed at protecting the cultural heritage of the countries involved, both in its tangible dimension (archaeological and historical sites) as well as in its intangible one (creative arts).309 Analogously, the China–New Zealand Free Trade Agreement expressly provides that ‘For the purposes of this Agreement, subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties where like conditions prevail, or a disguised restriction on trade in goods or services or investment, nothing in this Agreement shall be construed to prevent the adoption or enforcement by a Party of measures necessary to protect national works or specific sites of historical or archaeological value, or to support creative arts of national value.’310 Similarly, in the Annex of the US–Lithuania BIT, Lithuania reserved ‘the right to make or maintain limited exceptions to national treatment’ with regard to ‘monuments of nature, history, archaeology, and culture as well as the surrounding protective areas’ and the land of the Curonian Spit – a landscape of dunes that is a World Heritage Site.311
With regard to Indigenous peoples, the duty to protect Indigenous peoples’ rights has led states to include specific Indigenous exceptions in multilateral environmental agreements. Such MEAs include derogations to their main principles to accommodate the needs of Indigenous peoples.312 Such special measures
Several IIA s expressly acknowledge the rights of Indigenous peoples. For instance, Canada has inserted specific clauses protecting Indigenous rights in its trade and investment agreements,313 including its model Foreign Investment Protection Agreement (FIPA).314 The Trans-Pacific SEP expressly states that New Zealand can provide more favorable treatment to the Maori in fulfillment of its obligations under the Treaty of Waitangi,315 ‘provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Parties or as a disguised restriction on trade in goods and services’.316 In light of the constitutional concerns raised by the implementation of the Treaty of Waitangi, which is considered to be New Zealand’s founding document, the parties’ inclusion of an apposite cultural exception excluding New Zealand’s efforts to comply with the Treaty’s requirements from the dispute settlement provisions of the Trans-Pacific SEP represents a sensible approach.317
Analogously, the Energy Charter Treaty318 allows the contracting parties to adopt or enforce ‘any measure … designed to benefit Investors who are Aboriginal people or socially or economically disadvantaged individuals or groups or their investments, provided that such measure (a) has no significant impact on that Contracting Party’s economy; and (b) does not discriminate between Investors of any other Contracting Party and Investors of that Contracting Party not included among those for whom the measure is intended, provided that no such measure shall constitute a disguised restriction on Economic Activity in the Energy Sector, or arbitrary or unjustifiable discrimination between Contracting Parties or between Investors or other interested persons of Contracting Parties.’319 Malaysia has
The participation of Indigenous representatives in the drafting and renegotiation of IIA s has been recommended by the Special Rapporteur on the rights of Indigenous peoples.321 After finding that provisions in IIA s have ‘significant potential to undermine the protection of Indigenous peoples’ land rights and the strongly associated cultural rights,’322 she recommended that states develop participatory mechanisms so that Indigenous peoples have the ability to comment and provide inputs in the negotiation of IIA s. This explicit recognition of Indigenous entitlements by IIA s can empower the state to protect Indigenous groups without fearing expensive investment claims. In parallel, investors can consider the existence of protected groups when assessing the viability of the given investment.
Within the WTO framework, Article XX of the GATT 1994 includes a list of (limited) exceptions to fundamental trade standards. In some circumstances, the AB has sought guidance from other sources of law and international organizations to interpret and apply this provision. For instance, in the Shrimp–Turtle case, the AB referred to MEA s to define the scope of ‘exhaustible natural resources’.323 Analogously, the general exceptions listed in Article XX can be interpreted in light of international cultural heritage law and human rights instruments protecting cultural entitlements. Regrettably, the restrictive requirements of the introductory part (chapeau) of Article XX have limited the successful application of Article XX of GATT 1994 to trade disputes.
Concerning FTAs, two different approaches have emerged in negotiations. Adopted by Canada and the European Union in their FTAs, the first approach typically contains cultural exceptions.324 Adopted in the FTAs negotiated by the United States, the second approach consists in drawing a negative list: the agreement covers all services except those carved out by the parties.
Before the accession of some Eastern European countries to the European Union, the European Commission had expressed concerns about the compatibility of their earlier BIT s with European standards on European content
In parallel, Canada has always adopted a firm stance with regard to the protection of its cultural sector, considering it vital to Canadian identity and elaborating a specific exemption related to cultural goods in its trade agreements. According to Article 2005 of the Canada–United States Free Trade Agreement (CUSFTA),335 the predecessor of NAFTA, cultural industries are exempt from the provisions of the Agreement, except as specifically provided for.336 This provision has been recalled in the subsequent NAFTA, which replaced CUSFTA, and the United States-Mexico-Canada Agreement (USMCA), which has now replaced NAFTA.337 Such cultural exception demonstrates that economic
In contrast, the United States ‘has used FTA negotiations essentially to achieve cultural liberalization’,339 using a ‘negative list’ approach whereby all services and investments not specifically excluded from the agreements are covered by liberalization commitments. Such an approach can constrain the ability of states to adopt cultural policies. For instance, during the negotiations of the Australia–United States Free Trade Agreement (AUSFTA),340 although the United States requested to increase foreign market access, Australia insisted that local content requirements in audiovisual and broadcasting media were necessary to preserve Australian culture. The ‘non-conforming measures’ are now listed in Annex 1 of the AUSFTA.341 However, any modification of such measures must not diminish their conformity to liberalization principles. Analogously, in the US–Chile FTA, while Chile retains the right to employ a screen quota,342 cultural policies are subject to significant restraint. The US–Singapore FTA similarly contains a carve-out provision concerning national content broadcasting and distribution and publication of printed media.343 Notwithstanding such carve-out provisions, a negative list approach tends to promote the liberalization of the market of cultural goods and services.344
The merit of introducing a cultural clause in BIT s is further demonstrated by United Parcel Service of America, Inc. v. Government of Canada,345 which involved debate over the applicability of the cultural industries clause in a NAFTA claim. United Parcel Service of America (UPS), a US company providing courier and package delivery services both throughout Canada and worldwide, claimed that Canada’s Publications Assistance Program (PAP) – a policy
However, in the absence of a cultural exception, it seems more difficult to integrate cultural concerns into the fabric of international economic law.350 Finding the proper balance between private economic interests and common cultural concerns is the key challenge that international economic law faces ‘in the interest of its own legitimacy.’351 However, the lack of careful drafting in investment treaties should not undermine the regulatory power of the host state to adopt and implement cultural policies and even affirmative actions aimed at promoting economic, cultural, and social opportunities for disadvantaged groups. Such programs should not be seen as running foul of the bans on discrimination and performance requirements included in investment treaties.
The idea that affirmative action can be needed for achieving substantive equality among communities was first formulated by the Permanent Court of International Justice (PCIJ) in its Advisory Opinions on German Settlers in Poland352 and Greek Minority Schools in Albania respectively353 and has
Affirmative action may be needed to protect the cultural expressions of minorities or Indigenous peoples or those cultural expressions which are at risk of extinction or which need urgent protection. For instance, the Convention on Cultural Diversity (CCD) expressly entitles states parties to adopt measures to protect cultural expressions ‘at risk of extinction, under serious threat, or otherwise in need of urgent safeguarding’.357 Such conditions would enable states to adopt special measures, and this would not amount to discrimination against other cultural communities.358
Nonetheless, the compatibility between affirmative measures adopted by the host state and its international investment law obligations remains untested. When South Africa adopted an ambitious social and economic program to advance the standing of historically disadvantaged persons in the aftermath of the apartheid regime, this program generated much controversy among foreign investors and was challenged before an international arbitral tribunal.359 The Mineral and Petroleum Resources Development Act (MPRDA) vested all mineral and petroleum rights with the South African government. It then required that companies apply for converting their former property rights into new-order rights, that is, licenses for mineral exploitation from the South African government.360 Finally, it required corporations to sell 26 percent of their
As a matter of dispute avoidance, a cultural clause would prevent such disputes. In this sense, South African BIT s now expressly allow the application of government measures designed to promote equality.366 Such clauses clarify the willingness of the parties to fulfill the obligations of the BIT and to maintain a margin of maneuver for protecting the rights of disadvantaged groups. Exceptions protecting morals and/or public order can also be interpreted to include selected cultural concerns.
Yet, most of the existing IIA s do not contain any explicit reference to cultural heritage. Moreover, IIA s generally include ‘survival clauses that guarantee protection under the treaty … for a substantial period after the treaty has elapsed.’367 Therefore, ‘it is unrealistic to expect that treaty drafting can solve the conflict between [international investment law] and other community
3.2 Counterclaims
The increasing impact of FDI on the social sphere of the host state ‘has raised the question of whether the principle of access to justice, as successfully developed to the benefit of investors through the provision of binding arbitration, ought to be matched by a corresponding right to a remedial process for individuals and communities adversely affected by the investment in the host state.’370
A way to defragment the fragmentation of international law and to include cultural concerns in the operation of investor–state arbitration is by inserting legality requirements in treaties and raising counterclaims for eventual violations of domestic law protecting cultural entitlements. States can build some safeguards within international economic law by requiring compliance with domestic law. For instance, Article XX(d) of the GATT lists ‘Measures necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of GATT’ among the policies that may exempt a measure from being considered a GATT violation. Analogously, states can clarify that the relevant investment treaty protects only those investments that comply with domestic law. Such a clause can enable an adaptation of the treaty to the cultural needs of the state.
Recent IIA s tend to include legality requirements, that is, obligations for foreign investors to conform to, and respect, the domestic laws of the host state.371 For instance, Article 15.3 of the 2012 Southern African Development Community Model BIT prohibits investors from operating their investment ‘in a manner inconsistent with international, environmental, labour, and human rights obligations binding on the host state or the home state, whichever obligations are the higher’. Similarly, under Article 11 of the 2016 Indian Model BIT, ‘the parties reaffirm and recognize that: (i) Investors and their investments shall comply with all laws, regulations, administrative guidelines, and policies of a
Such provisions empower states to adopt special measures to protect cultural heritage. Such clauses require foreign investors to comply with existing cultural heritage law as a condition for claiming rights under the treaty. In this manner, the mechanism that gives international economic law so much power—dispute resolution—is infused with the need to protect cultural heritage.
States have also increasingly tried to assert counterclaims against investors, even though their efforts have tended not to be successful.372 While most treaties do not have broad enough dispute resolution clauses to encompass counterclaims, ‘drafting treaties to permit closely related counterclaims would help to rebalance investment law.’373
Some investor–state dispute settlement provisions confer on tribunals the power to hear ‘any dispute between an investor of one contracting party and the other contracting party in connection with an investment.’374 Other investment treaties provide that the law applicable in investor–state arbitration is the domestic law. If domestic law is the applicable law, ‘international law plays a supplemental and corrective function in relation to domestic law.’375 Not only does international law ‘fill the gaps in the host state’s laws,’ but in case of conflict with the latter, it prevails.376 In any case, even if the applicable law was not domestic law, investors remain under an obligation to abide by the domestic laws of the state in which they operate, because of the international law principle of territorial sovereignty. These and similar textual hooks seem to enable counterclaims. The ICSID Convention also expressly contemplates the possibility of counterclaims ‘provided that they are within the scope of the consent of the parties and are otherwise within the jurisdiction of the centre’.377
3.3 Amici Curiae
International economic courts may not be the most appropriate tribunals for adjudicating cultural heritage-related disputes. In most cases, states have defended key economic and cultural interests before international economic courts. For instance, in the seal products dispute before the WTO panel and Appellate Body, Canada forcefully defended its coastal communities’ economic and cultural interests in practicing seal hunting and commercializing seal products that had been affected by the EU ban on seal products.383 In the Glamis Gold arbitration, concerning a gold mine in California, the United
In this regard, international economic courts constitute an uneven playing field: while foreign investors and trading nations have the right to act or be heard (locus standi) before these tribunals, local communities and Indigenous peoples do not have direct access to these dispute settlement mechanisms. Rather, their arguments need to be espoused by their home government. Nonetheless, states are not always willing to adequately represent the cultural interests of local communities and Indigenous peoples.386 In fact, the cultural entitlements of local communities and Indigenous peoples often compete with the economic development plans of both investors and states. Therefore, despite the formal premise of equality between the parties, there are structural power asymmetries between different stakeholders in cultural heritage-related international economic disputes.387
To overcome this imbalance, local communities, groups of Indigenous peoples, NGO s, academics, and even UNESCO, and other UN bodies who are not a party to a given dispute but have an interest in the outcome of the same can seek permission to intervene in the proceedings and present friend-of-the-court (amicus curiae) briefs reflecting their interests. Amicus curiae submissions can assist international economic courts in the determination of factual or legal issues related to the dispute by bringing a perspective that is different from that of the disputing parties. They can be particularly useful in cultural heritage-related disputes by adding new content or defending positions not adequately represented in the proceedings.
International economic courts can seek, accept, and consider amicus curiae briefs because such briefs can assist them in establishing facts and the
Therefore, in light of their inherent powers to seek information and technical guidance from any individual or body they may consider appropriate, international economic courts can seek information or grant requests to submit amicus curiae briefs if the friends of the court can demonstrate that they could assist tribunals without unduly delaying the proceedings.392 International economic courts usually ensure that the participation of amici curiae does not disrupt the proceedings or affect the due process of law or unduly burden either party.
UNESCO has never yet submitted any amicus curiae to arbitral tribunals or WTO courts. However, this does not mean that international economic courts could not seek information from this organization should they deem it appropriate or accept a request to submit an amicus curiae brief from the same organization in the future. UNESCO has submitted an amicus curiae brief to the International Criminal Court, and there is no reason why it would not submit similar briefs to the attention of international economic courts in the future.393 Such briefs could provide adjudicators with an excellent and
Analogously, requests to submit amicus curiae briefs could be made to or received from other UN bodies such as the Special Rapporteur on the Rights of Indigenous Peoples, an independent expert appointed by the UN Human Rights Council to monitor and promote the full realization of Indigenous peoples’ rights worldwide. The Special Rapporteur on the Rights of Indigenous Peoples has already submitted amicus curiae briefs before international courts and tribunals, and there is scope to envisage similar participation in Indigenous heritage-related international economic disputes.395
Indigenous peoples have increasingly participated in investment arbitrations through amici curiae. They submitted their first amicus curiae brief to an international economic court in the Softwood Lumber case, a long-lasting trade dispute between the US and Canada. In this case, the US complained that the price at which Canada sold lumber to the US was artificially low and amounted to illegal dumping. In their amicus curiae brief, Indigenous tribes rejected Canada’s argument that its comparative advantage came from the fact that ‘Canada ha[d] more trees’. Rather, the amici argued that ‘in reality [such advantage] c[ame] from the fact that it g[ave] the forests over to the companies who pa[id] only a small extraction fee and no-one pa[id] a dime to the Aboriginal co-owners of the forests or even to the people of Canada.’396 The use of amicus curiae briefs may be ‘a new and effective way of framing arguments in seeking the recognition and protection of Indigenous rights.’397 Nonetheless, the panel did not comment on the arguments presented in the amicus curiae brief.
Other amicus curiae submissions followed in subsequent arbitrations. In the Glamis Gold case, the Tribunal granted the Quechan Indian Nation leave to
More recently, in Bear Creek Mining v. Peru,401 concerning the development of a silver mining project, the Tribunal granted the permission to submit an amicus curiae brief to an NGO which promoted the human rights of the Aymara and Quechua Indigenous peoples.402 The Tribunal considered that its expertise and ‘local knowledge of the facts m[ight] add a new perspective that differ[ed] from that of the Parties.’403 The amicus curiae brief contributed to the factual and legal architecture of the case.
On the factual level, it ‘present[ed] the concerns of the population with regard to the social, cultural, and environmental impact that would occur if the … mining project were developed.’404 As the brief explained, the project was taking place in a poor and rural area whose peasant communities ‘ethnically and culturally belonged to the Aymara people.’405 The brief highlighted the ‘deep cultural and social ties’ of the Aymara people with their land.406 In fact, their principal economic activities depended on the land, namely agriculture, fishing, and livestock farming. Moreover, for the Aymara, land was ‘not only a geographical space but represents a spiritual bond.’407 Therefore, the Aymara had ‘concerns regarding changes to the natural landscape, the integrity
At the legal level, the amicus curiae brief referred to international human rights law and corporate social responsibility.411 In particular, it referred to ‘the right of Indigenous peoples to free and informed prior consultation, the responsibility of the company to respect human rights and conduct itself with due diligence with the aim of obtaining local consent and social license to operate.’412 The Tribunal considered the amicus curiae submission in the final award.
Nonetheless, international economic courts are not legally obligated to accept let alone to consider such briefs; rather, they have the power to do so should they deem it appropriate: ‘it is particularly within the province and authority of a panel to determine the need for information and advice in a specific case, to ascertain the acceptability and relevancy of the information or advice received, and to decide what weight to ascribe to that information, or to conclude that no weight at all should be given to what has been received.’413 The Appellate Body has advocated the power not to accept amicus curiae submissions or not to address, in its reports, the legal arguments made in such briefs414: ‘Acceptance of any amicus curiae brief is a matter of discretion.’415 Arbitral tribunals have adopted a similar stance.
In some cases, arbitral tribunals have denied the participation of Indigenous non-disputing parties.416 For instance, in Bernhard von Pezold and Others v. the Republic of Zimbabwe,417 the claimants alleged unlawful expropriation
The petitioners argued that ‘international human rights law on Indigenous peoples applies to these arbitrations in parallel to the relevant BIT s and the ICSID Convention.’420 According to the petitioners, the ‘Arbitral Tribunals’ mandate derives from powers delegated to it by Contracting Parties with concrete human rights obligations under international law.’421
The claimants objected to the submissions, alleging the petitioners’ lack of independence. They noted that while their titles had ‘never been subject to, or conditional on, the claims of the Indigenous communities,’ they had ‘always acknowledged that some parts of the Border Estate [we]re of particular cultural significance to those communities,’ and ‘therefore granted access to those parts of the Estate to the communities.’422 The claimants also argued that ‘reference to “international law” in the applicable BIT s does not mean that the whole body of substantive international law is applicable.’423 For its part, the Respondent had no objection to the NGO being allowed to make submissions ‘provided they … d[id] not impinge on or amount[ed] to a challenge to the sovereignty and territorial integrity of the Republic of Zimbabwe’.424
The Tribunal rejected the petition.425 The Tribunal acknowledged that the Indigenous tribes had ‘some interest in the land over which the Claimants assert[ed] full legal title,’ and that ‘the determinations of the Arbitral Tribunal in these proceedings w[ould] have an impact on the interests of the Indigenous communities.’426 Yet, it held that the ‘apparent lack of independence or neutrality
Finally, the Tribunal agreed with the Claimants that the applicable law ‘d[id] not incorporate the universe of international law into the BIT s or into disputes arising under the BIT s’.429 Since neither Party put the identity and/or treatment of the Indigenous communities under international law in issue in the proceedings, the Tribunal considered that the matter fell outside the scope of the dispute as it was constituted.430 While the proposed submission purported to focus on the rights of Indigenous peoples under international law, the ICSID dispute concerned measures adopted by Zimbabwe that, according to the claimants, infringed provisions of the applicable BIT s.431 For the Tribunal, the former was not within the scope of the latter.
Proponents of amicus curiae briefs consider them a means of enhancing the legitimacy and effectiveness of decision-making. Such briefs can harbinger the introduction of public values into international economic governance.432 They can illuminate the stance of historically marginalized communities and enable their voices to be heard in the implementation of international economic law. They can thus build bridges across different treaty regimes. Amicus curiae briefs can contribute to the factual and legal architecture of a case. Finally, they can enhance the perceived openness of international economic governance to non-state actors.
Yet, opponents of non-state actors’ involvement contend that it undermines efficient decision-making by repoliticizing disputes and enabling the undue influence of special interests over trade and investment.433 For instance, an excessive emphasis on the conservation of natural and cultural heritage can constitute an act of ‘green colonialism’, whereby outside groups show interest in land preservation and suggest the adoption of environmental and cultural policies that affect the land rights of Indigenous peoples.
In any case, amicus curiae briefs do not constitute an ideal participatory mechanism as international economic courts are not required to accept such submissions; rather, they can accept them, provided that certain conditions are met, including timeliness, brevity, and independence. Moreover, even when such courts decide to accept amicus curiae briefs, they may impose restrictive word limits and short timeframes to present arguments.435 More importantly, by serving as amici curiae, local communities and Indigenous peoples do not become parties to the proceedings; rather, they have limited rights in the course of the same and cannot file an appeal or an annulment claim. They cannot ask for final or interlocutory remedies to preserve cultural entitlements before international economic courts. Finally, international economic courts are not obligated to discuss arguments presented in amicus curiae briefs in their decisions.436
In conclusion, international economic courts should be sympathetic to amicus curiae briefs, in particular to those presented by affected Indigenous and local communities, accepting them as a matter of course in disputes that can affect their interests. This would enable Indigenous and local communities to have a say in proceedings that can affect them, illuminate their perspectives, and bring their arguments to the forefront of legal debates. Even though participation as amici curiae does not amount to a right, and international economic law includes other defragmenting techniques,437 this tool can contribute to the harmonious development of international law. By giving voice to the voiceless, even if some amicus curiae briefs did not ultimately influence the proceedings in the short term, they could influence further debate and potentially have a long-term impact on the development of international law.
International economic law is not written in stone and continually evolves through the periodic renegotiation of IIA s and the multilateral negotiation rounds at the WTO. Authoritative interpretations, waivers, and amendments can further contribute to the evolution of international economic law and its fine-tuning with other international law instruments. Such legal tools enable international economic law to openly endorse the fluidity of time and successfully manage change. In an ever-changing world, some change is also needed within the international legal order to ensure stability and justice. While treaties govern international relations and enable stability, certainty, predictability, and the functioning of the international legal system, a certain degree of flexibility is needed in some circumstances to maintain a balance between the rights and obligations within any given treaty. These legal tools can enable international economic law to respond to the challenges ahead – including cultural heritage-related disputes. Moreover, these three different, albeit related, legal tools can open international economic governance to ‘the coordination and reconciliation of competing norms and interests’.438
While the Ministerial Conference and the General Council acting on its behalf have ‘no general law-making competence’, they can adopt authoritative interpretations,439 waivers,440 and amendments.441 Concerning authoritative interpretations, the Ministerial Conference and the General Council can interpret the WTO agreements without being bound by prior decisions of WTO courts. To date, the WTO has not yet explicitly used authoritative interpretations.442 Instead, parties to investment treaties have used this legal tool to clarify vague treaty provisions and fill in interpretive gaps.443 Through authoritative interpretations, states ‘formally possess the ability to specify what the law is or should be when they … disagree with interpretations developed by [international economic courts], as well as in situations where … rules are unclear or
The WTO frequently grants waivers to respond to changing circumstances.446 In exceptional cases, waivers permit a Member to depart from an existing WTO obligation for a limited time. Waivers are ‘exceptional in nature’ and subject to strict terms and conditions.447 Waivers are reviewed annually and, based on such review, they may be extended, modified, or terminated. Therefore, waivers cannot be taken as ‘a subsequent agreement in the sense of Article 31(3)(a) of the Vienna Convention on the Law of Treaties’.448 Nonetheless, the WTO members have sometimes used waivers in situations where a multilateral interpretation would have been more appropriate.
For example, the General Council issued a waiver enabling several WTO members to ban trade in conflict diamonds under the Kimberley Process Certification Scheme (KPCS).449 Endorsed in General Assembly and Security Council resolutions, this scheme aims at barring trade in conflict diamonds, that is, diamonds used by rebel movements to fund armed conflict aimed at overthrowing legitimate governments.450 Under the scheme, only certified
While the waiver was welcomed as a successful way to compose diverging interests, namely international peace and security on the one hand and free trade on the other, Pauwelyn has convincingly highlighted the fact that international trade law itself already had all of the relevant flexibilities to reconcile the conflicting interests. Therefore, for Pauwelyn, waivers ‘risk … sending out the wrong signals, confirming a WTO superiority complex.’452 Nonetheless, they have the merit of reaffirming the importance of non-economic values within international economic law. Moreover, waivers could be envisaged to shield urgent measures adopted by states to safeguard their intangible cultural heritage and cultural practices.
More recently, India and South Africa proposed a waiver to ensure that, during the COVID-19 pandemic, IP protection could not prevent timely, universal, and affordable access to, and development of, related health products including vaccines.453 Many countries backed the proposal arguing that it would help save lives by allowing developing countries to produce their COVID-19 vaccines at a low cost. At the 12th WTO Ministerial Conference in Geneva, Member States agreed on a deal that temporarily removed IP barriers around patents for COVID-19 vaccines.454 While this agreement did not waive IP on all essential COVID-19 medical tools and did not apply to all countries, it contributed to the global fight against the pandemic.
States also have the power to amend treaties adding to, altering, or diminishing existing rights and obligations. The procedures for amending the various WTO agreements are complex and differ according to the agreement and
Treaty texts could be amended to insert cultural concerns explicitly within the tapestry of international economic law, acknowledging the states’ rights and duties to adopt affirmative measures to protect the cultural heritage of minorities and Indigenous peoples, admitting the possibility of considering cultural products as different from other goods, or modifying the text of the general exceptions to include a specific provisions for cultural products.
3.5 Institutional Cooperation
Neither the World Trade Organization nor the World Bank are the primary international institutions responsible for addressing cultural matters. This task is the province of UNESCO. The United Nations established this specialized agency in 1946 to foster intercultural dialogue and build peace through international cooperation in education, sciences, and culture. Although the WTO and the World Bank are not UN agencies, they have maintained strong relations with the UN and its agencies since their establishment. These organizations have almost the same membership: only a handful of UN member countries are not members of the WTO and the World Bank.
The WTO–UN relations are governed by specific 1995 Arrangements.457 The WTO Director General participates in the Chief Executive Board which is the organ of coordination within the UN system. In parallel, the United Nations and the World Bank Group signed a Strategic Partnership Framework
During the GATT era, institutional cooperation led to win-win outcomes from both trade and cultural perspectives. For instance, UNESCO and the GATT Contracting Parties collaborated on matters of cultural trade, conceptualizing trade as a useful tool to promote access to knowledge and education. The Florence Agreement on the Importation of Educational, Scientific, and Cultural Materials aimed to dismantle customs barriers to cultural goods.459 Covering books and audiovisual material of an educational, scientific, and cultural nature, the Florence Agreement offers a unique example of inter-institutional collaboration on matters of cultural trade.
Institutional cooperation and coordination between the WTO, the World Bank, and UNESCO can moderate the effects of possible conflicts of norms. Indeed, Article V of the WTO Agreement directs the General Council to ‘make appropriate arrangements for effective cooperation with other intergovernmental organizations that have responsibilities related to those of the WTO.’460 These organizations could mutually provide observer status, with each institution allowing the other to witness its deliberations and, in some cases, to have a voice in them. While the World Bank has observer status at the WTO General Council, the WTO has observer status at the World Bank and UNESCO.
Memoranda of understanding could set out the terms by which the World Bank, the WTO, and UNESCO might cooperate in areas of common interest. These organizations could also conduct joint research and analysis, for instance by organizing regular workshops on matters of common interest and publishing the outcomes of the proceedings.461 In this regard, the WTO Secretariat has developed several publications in collaboration with other counterparts on issues of mutual interest, and already cooperates with UNESCO in matters related to IP and services. Cultural heritage is also increasingly discussed at the WTO annual Public Forum.462
In conclusion, the WTO, the World Bank, and UNESCO have already established some institutional relations with each other. This culture of cooperation needs to be enhanced to make international economic law more permeable to cultural concerns to respond to current challenges and evolve in conformity with other international law instruments.
4 Conclusions
The development of international economic law poses a challenge for international lawyers, as it raises the question of whether or not international economic law is clinically isolated from public international law. The question is clearly linked to the debated topic of whether public international law is a fragmented system or not. Adopting a unitary approach, this chapter advocates the importance of achieving coherence among the different sources of international law when adjudicating cultural heritage-related disputes. This chapter has investigated several legal tools that both de lege lata and de lege ferenda may help adjudicators and policy-makers to reconcile the different interests at stake.
However, this does not mean that cultural heritage should be irrelevant in the context of trade and investment disputes. In many circumstances, international law is the law applicable to the given disputes according to the arbitral clause or the relevant treaty provision. Even in those cases where the applicable law is the law of the host state, it is worth recalling that national legal systems are permeated by international law, be they monist or dualist systems. Therefore, when arbitrators apply national provisions that reflect international law norms, the boundaries between the international and the national planes become blurred. Where peremptory norms of international law matter in the context of adjudication, adjudicators must consider these fundamental norms. In particular, arbitral tribunals, WTO panels, and the AB can and should interpret international economic law in conformity with jus cogens and state obligations under the United Nations Charter. International economic law must also be interpreted in light of customary rules of treaty interpretation, thus considering ‘any relevant rules of international law applicable in the relations between the parties.’466 Traditional tools of treaty interpretation may contribute to reconciling trade, foreign investment, and cultural heritage, as well as to gradually humanizing of international economic law.
De lege ferenda, treaty-driven approaches to cultural heritage protection can be envisaged. Such text-driven approaches rely on the periodical renegotiation of international agreements. Since international investment treaties are renegotiated from time to time, there is scope for inserting ad hoc clauses such as cultural exceptions within these treaties. Analogously, the WTO-covered agreements are not written in stone; rather, rounds of negotiations regularly take place, and WTO members have adopted interpretative statements, waivers, and even amendments to better accommodate non-trade concerns into the fabric of the WTO.
Simone de Beauvoir, The Ethics of Ambiguity, Bernard Frechtman (trasl.) (Citadel Press 1948).
The term ‘self-contained regime’ was first used by the PCIJ in the Wimbledon case to determine the relationship between conflicting treaty provisions. Case of the SS Wimbledon (United Kingdom, France, Italy, and Japan v. Germany) PCIJ Reports Series A No. 1 at 23–24. The ICJ used the expression in a different context. Diplomatic and Consular Staff in Teheran Case (United States v. Iran) 1980 ICJ Reports 40, at para. 86. See also WTO AB Report, United States—Standards for Reformulated and Conventional Gasoline (US–Gasoline), WT/DS2/AB/R, adopted 20 May 1996, at 17 (affirming that WTO treaties are ‘not to be read in clinical isolation from public international law’); Asian Agricultural Products Ltd v. Democratic Socialist Republic of Sri Lanka, ICSID Case No. ARB/87/3, Award, 27 June 1990, para. 21 (highlighting that international investment law ‘is not a self-contained closed legal system …, but it has to be envisaged within a wider juridical context in which rules from other sources are integrated through implied incorporation methods, or by direct reference to certain supplementary rules, whether of international law character or of domestic law nature’.)
On the concept of legal system or legal order, see Santi Romano, L’Ordinamento Giuridico, 2nd edn (Firenze: Sansoni 1946).
Gottfried Wilhelm Leibniz, Principes de la Nature et de la Grâce, in C.J. Gerhardt (ed.), Die philosophischen Schriften von G. W. Leibniz (Leipzig 1875–90) volume VI, p. 598, para. 3.
Anthea Roberts, ‘Incremental, Systemic, and Paradigmatic Reform of Investor–State Arbitration’ (2018) 112 AJIL 410–432; Simon Lester, ‘Ending the WTO Dispute Settlement Crisis: Where to From Here?’, IISD Newsletter, 2 March 2022.
Lester, ‘Ending the WTO Dispute Settlement Crisis’, (quoting US Trade Representative, Katherine Tai).
WTO, ‘Members Commit to Engagement on Dispute Settlement Reform’, News Item, 27 April 2022.
Robert Howse, ‘Appointment with Destiny: Selecting WTO Judges in the Future’ (2021) 12 Global Policy 71–82.
James A. R. Nafziger, Robert K. Paterson, and Alison Dundes Renteln, Cultural Law: International, Comparative, and Indigenous (Cambridge: CUP 2010) 605.
Anna Spain, ‘Integration Matters: Rethinking the Architecture of International Dispute Resolution’ (2010–2011) 32 University of Pennsylvania JIL 1–55, 16
See, for instance, US–Ecuador BIT, Article VI. Treaty between the United States of America and the Republic of Ecuador Concerning the Encouragement and Reciprocal Protection of Investment, 27 August 1993, in force 11 May 1997.
Burlington Resources Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5, Decision on Jurisdiction, 2 June 2010, para. 31.
Murphy Exploration and Production Company International v. Republic of Ecuador, ICSID Case No. ARB/08/4, Award on Jurisdiction, 15 December 2010, at paras 151 and 154.
Id. para. 135.
Jeswald Salacuse, ‘The Emerging Global Regime for Investment’ (2010) Harvard ILJ 427.
Lester, ‘Ending the WTO Dispute Settlement Crisis’.
DSU Article 4.
DSU Articles 4.3 and 4.5.
Turkey—Taxation of Foreign Film Revenues, Notification of Mutually Agreed Solution, WT/DS43/3.
Michael Hahn, ‘A Clash of Cultures? The UNESCO Diversity Convention and International Trade Law’ (2006) 9 JIEL 515–552, 528.
DSU Article 5.
Lester, ‘Ending the WTO Dispute Settlement Crisis’.
Roger Fisher and William Ury, Getting to Yes: Negotiating Agreement Without Giving In (New York: Penguin Books 1983).
Daniel L. Gebert, ‘Sovereignty Under the World Heritage Convention: A Questionable Basis for Limiting Federal Land Designation Pursuant to International Agreements’ (1998–1999) 7 Southern California Interdisciplinary Law Journal 427–444, 428.
‘A Holy Journey: Church Moved to Make Way to Coal Mine’, Spiegel Online, 24 October 2007.
Constitutional Court of Saxony, Judgment of 25 November 2005, Vf. 119-VIII-09, available at: www.justiz.sachsen.de/esaver/internet/2004_119_VIII/2004_119_VIII.pdf
‘A Holy Journey’.
John Collier and Vaughan Lowe, The Settlement of Disputes in International Law (Oxford: OUP 2000) 27.
DSU Article 5.3.
Stephen Schwebel, ‘Is Mediation of Foreign Disputes Plausible?’, in Stephen Schwebel, Justice in International Law (Cambridge: CUP 2011) 318–22.
Jeswald Salacuse, ‘Is There a Better Way? Alternative Methods of Treaty Based, Investor-State Dispute Resolution’ (2007) 31 Fordham ILJ 138–185, 161.
Chester A. Crocker, Fen Osler Hampson, Pamela R. Aall, Herding Cats: Multiparty Mediation in a Complex World (Washington D.C.: United States Institute of Peace 1999).
Spain, ‘Integration Matters’, 23.
Schwebel, ‘Is Mediation of Foreign Disputes Plausible?’
See César Rodríguez-Garavito, ‘Ethnicity.gov: Global Governance, Indigenous Peoples, and the Right to Prior Consultation in Social Minefields’ (2011) 18 Indiana J. Global Legal Studies 263–306, 299.
Vienna Convention on the Law of Treaties (VCLT), 23 May 1969, in force 27 January 1980, 1155 UNTS 331, preamble.
See Stuart Grass, ‘Inordinate Chill: BIT s, Non-NAFTA MIT s, and Host-State Regulatory Freedom: An Indonesian Case Study’ (2003) 24 Michigan JIL 893–960, 894.
Id.
Salacuse, ‘Is There a Better Way?’, 176.
Id.
Id. 179.
Joost Pauwelyn, Conflict of Norms in Public International Law (Cambridge: CUP 2003), 12.
Anne Marie Slaughter, A New World Order (Princeton N.J.: Princeton University Press 2004) 209.
Ioana Tudor-Knoll, ‘The Fair and Equitable Treatment Standard and Human Rights Norms’, in Pierre-Marie Dupuy, Ernst-Ulrich Petersmann, and Francesco Francioni (eds), Human Rights in International Investment Law and Arbitration (Oxford: OUP 2008) 310–343, 338.
Tedor Meron, The Humanization of International Law (Leiden: Martinus Nijhoff 2006).
Joost Pauwelyn, ‘Bridging Fragmentation and Unity, International Law as a Universe of Inter-connected Islands’ (2004) 25 Michigan JIL 903–916.
See e.g. Article 1(2) Protocol No. 1 to the European Convention on Human Rights.
Pauwelyn, Conflict of Norms in Public International Law, 6.
Seyed-Ali Sadat–Akhavi, Methods of Resolving Conflicts between Treaties (Leiden: Brill 2003) 33.
Wilfred Jenks, ‘The Conflict of Law-Making Treaties’ (1953) 30 BYIL 401–453, 426.
See Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, adopted by the International Law Commission at its Fifty-eighth session, in 2006, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session, A/61/10, para. 251.
Vienna Convention on the Law of Treaties (VCLT), opened for signature 23 May 1969, in force 27 January 1980, 1155 UNTS 331, Article 30.
Donald McRae, ‘International Economic Law and Public International Law: The Past and the Future’ (2014) 17 JIEL 627–638, at 635.
See e.g. CCD Article 20.
Pierre Lalive, ‘Réflexions sur un Ordre Public Culturel’, in Eric Wyler and Alain Papaux (eds), L’Extranéité ou le Dépassement de l’Ordre Juridique Étatique (Paris: Pédone 1999).
VCLT Article 53.
Andrea Bianchi, ‘Human Rights and the Magic of Jus Cogens’ (2008) 19 EJIL 491–508, 491 (internal citation omitted).
See Mark Janis, ‘Jus Cogens: An Artful Not a Scientific Reality’ (1987–1988) 3 Connecticut JIL 370.
Martti Koskenniemi, ‘International Law in Europe: Between Tradition and Renewal’ (2005) 16 EJIL 113–124.
Pierre-Marie Dupuy, ‘Some Reflections on Contemporary International Law and the Appeal to Universal Values: A Response to Martti Koskenniemi’ (2005) 16 EJIL 131–137, at 136.
Evan J. Criddle and Evan Fox-Decent, ‘A Fiduciary Theory of Jus Cogens’ (2009) 34 Yale JIL 331–387.
VCLT Article 53.
Gabrielle Marceau, ‘WTO Dispute Settlement and Human Rights’ (2002) 13 EJIL 753–814, at 778.
VCLT Article 44(5).
VCLT Article 31(3)(c).
Ian Sinclair, The Vienna Convention on the Law of Treaties (Manchester: Manchester University Press 1984) 139.
Statute of the International Court of Justice, Article 38.2. League of Nations, Statute of the Permanent Court of International Justice, 16 December 1920, Article 38.4.
Anastasios Gourgourinis, Equity and Equitable Principles in the World Trade Organization Addressing Conflicts and Overlaps between the WTO and Other Regimes (London: Routledge 2016).
Leon Trakman, ‘Ex Aequo et Bono: Demystifying an Ancient Concept’ (2008) 8 Chicago Journal of International Law, 621–642, 642 (reporting these criticisms).
See generally Petros C. Mavroidis, The Sources of WTO Law and their Interpretation (Cheltenham: Edward Elgar 2022); Tarcisio Gazzini and Eric De Brabandere (eds), International Investment Law: the Sources of Rights and Obligations (Leiden/Boston: Martinus Nijhoff 2012).
Statute of the International Court of Justice, Article 38.
Peter Van den Bossche, The Law and Policy of the World Trade Organization (Cambridge: CUP 2008) 42.
Paolo Picone and Aldo Ligustro, Diritto dell’Organizzazione Internazionale del Commercio (Padua: CEDAM 2002); Francesco Francioni, ‘Diritto Internazionale degli Investimenti e Tutela dei Diritti Umani: Convergenza o Conflitto?’ in Adriana Di Stefano e Rosario Sapienza (eds), La Tutela dei Diritti Umani e il Diritto Internazionale (Naples: Editoriale Scientifica 2012) 417–435, 425.
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) Judgment (2015) ICJ Reports 3, para. 85.
Pauwelyn, Conflict of Norms in Public International Law, 241.
See Section 2.5 below.
DSU Article 3.3.
DSU Article 3.2.
DSU Article 19.2.
Van den Bossche, The Law and Policy of the World Trade Organization, 174.
DSU Article 3.2.
Van den Bossche, The Law and Policy of the World Trade Organization, 55.
Panel Report, Korea—Measures Affecting Government Procurement, WT/DS163/R, adopted 19 June 2000, para. 7.96.
Pauwelyn, Conflict of Norms in Public International Law, 210–211 and 470.
Since 1996, the International Committee of the Red Cross (ICRC) has identified a number of customary norms of international humanitarian law. Among such rules, seven norms relate to cultural heritage protection: Rule 38 (Attacks Against Cultural Property); Rule 39 (Use of Cultural Property for Military Purposes); Rule 40 (Respect for Cultural Property); Rule 41 (Export and Return of Cultural Property in Occupied Territory); Rule 51 (Public and Private Property in Occupied Territory); Rule 52 (Pillage); Rule 61 (Improper Use of Other Internationally Recognized Emblems).
Francesco Francioni, ‘Au-delá des Traités—L’Émergence d’un Nouveau Droit Coutumier pour la Protection du Patrimoine Culturel’ (2007) 111 Revue Generale de Droit International Public 19–42.
Petros Mavroidis, ‘No Outsourcing of Law? WTO Law as Practiced by WTO Courts’ (2008) 102 AJIL 421–474, 439.
Van den Bossche, The Law and Policy of the World Trade Organization, 56.
Id.
Panel Report, Korea—Procurement, para. 7.93.
Catharine Titi, ‘The Function of Equity in International Law (Oxford: OUP 2021); Marion Pannizzon, Good Faith in the Jurisprudence of the WTO (Oxford: Hart Publishing 2006) 23.
Hersch Lauterpacht, ‘Some Observations on the Prohibition of Non Liquet and the Completeness of the Law’, in F. M. van Asbeck (ed.), Symbolae Verzijl: Présentées au Prof J.H.W. Verzijl, à l’Occasion de son LXXième Anniversaire (The Hague: Nijhoff 1958) 196–221.
Peter Muchlinski, ‘Caveat Investor? The Relevance of the Conduct of the Investor Under the Fair and Equitable Treatment Standard’ (2006) ICLQ 527–558.
Mavroidis, ‘No Outsourcing of Law?’, 443.
World Commission on Environment and Development, Our Common Future (Brundtland Report) (Oxford: OUP 1987).
David Throsby, Economics and Culture (Cambridge: CUP 2001).
Ole Spiermann, ‘Applicable Law’, in Peter Muchlinski, Federico Ortino, and Christoph Schreuer (eds), The Oxford Handbook of International Investment Law (Oxford: OUP 2008) 92.
Grand River v. United States, Award, para. 186. For comprehensive analyses of the role of Indigenous peoples in international economic law, see generally Sergio Puig, At the Margins of Globalization: Indigenous Peoples and International Economic Law (Cambridge: CUP 2021) and John Burrows and Risa Schwartz, Indigenous Peoples and International Trade: Building Equitable and Inclusive International Trade and Investment Agreements (Cambridge: CUP 2020).
Treaty Between the Government of the United States of America and the Government of [Country] Concerning the Encouragement and Reciprocal Protection of Investment.
Id. Article 30(1).
USMCA Article 14.D.9.
ICSID Convention Article 42.
New York Convention Article V.
ICSID Convention Article 52(1)(c).
Grand River v. United States, Award, para. 71.
Id. (internal reference omitted).
See e.g. Pierre Marie Dupuy, ‘Unification Rather than Fragmentation of International Law? The Case of International Investment Law and Human Rights Law’, in Pierre Marie Dupuy, Francesco Francioni, and Ernst Ulrich Petersmann (eds), Human Rights in International Investment Law and Arbitration (Oxford: OUP 2009) 25.
Richard Kreindler, ‘The Law Applicable to International Investment Disputes’, in Norbert Horn (ed.), Arbitrating Foreign Investment Disputes (The Hague: Kluwer Law International 2004) 413–14.
Argentina–Spain BIT, 3 October 1991, in force 28 September 1992.
Emilio Agustin Maffezini v. Kingdom of Spain, ICSID Case No. ARB/97/7, Decision on Jurisdiction, 25 January 2000, para. 19.
Id. para. 67.
Glamis Gold v. United States, Award, footnote 194.
Parkerings-Compagniet AS v. Republic of Lithuania, Award, ICSID Case No. ARB/05/8, 11 September 2007, para. 392
See Hege Elisabeth Veenstra-Kjos, ‘Counter-Claims by Host States in Investment Dispute Arbitration without Privity’, in Philippe Kahn and Thomas Waelde (eds), New Aspects of International Investment Law (Leiden: Martinus Nijhoff Publishers 2007) chapter 14.
Yaraslau Kryvoi, ‘Counterclaims in Investor-State Arbitration’ (2012) 21 Minnesota JIL 216–252, 219.
Jorge Viñuales, Foreign Investment and the Environment in International Law (Cambridge: CUP 2012).
Grand River v. United States, Award, para. 103.
Id.
Id. para. 210.
Dred Scott v. John Sandford, 60 U.S. (19 How.) 393 (1857).
Martin Hunter and Guy Conde e Silva, ‘Transnational Public Policy and Its Application in Investment Arbitrations’ (2003) 4 JWIT 367–378.
Audley Sheppard, ‘Public Policy and the Enforcement of Arbitral Awards: Should There Be a Global Standard?’ (2004) TDM 1.
Pierre Lalive, ‘Ordre Public Transnational (ou Réellement International) et Arbitrage International’ (1986) Revue de l’Arbitrage 329–73.
Eric De Brabandere, ‘The (Ir)relevance of Transnational Public Policy in Investment Treaty Arbitration’ (2020) 21 JWIT 847–866, 852.
World Duty Free v. Republic of Kenya, Award, para. 141.
Georg Schwarzenberger, ‘International Jus Cogens?’ (1964–1965) 43 Texas LR 455–478 at 455.
Prosper Weil, ‘Towards Relative Normativity in International Law?’ (1983) 77 AJIL 413–442, 421.
Id. 422.
Harry Gould, ‘Categorical Obligation in International Law’ (2011) 3 International Theory 254–285 at 272 (internal reference omitted).
Michel Virally, ‘Réflexions sur le Jus Cogens’ (1966) 12 Annuaire Français de Droit International 5–29, at 10.
See sections 5.6 and 5.7 above.
Julian Arato, Kathleen Claussen, and J. Benton Heath, ‘The Perils of Pandemic Exceptionalism’ (2020) 114 AJIL 627–636, 631.
Céline Lévesque, ‘The Inclusion of GATT Article XX Exceptions in IIA s: A Potentially Risky Policy’ in Roberto Echandi and Pierre Sauvé (eds) Prospects in International Investment Law and Policy (Cambridge: CUP 2013) 363–70, 366–7.
Alexander Orakhelashvili, Peremptory Norms in International Law (Oxford: OUP 2006) 492.
Zachary Douglas, ‘The Plea of Illegality in Investment Treaty Arbitration’ (2014) 29 ICSID Review 155–186, at 180.
Id. 181.
Id.
Id.
VCLT Articles 64 and 53.
International Covenant on Civil and Political Rights, 16 December 1966, 6 ILM 368, 999 UNTS 171, Article 1.1; International Covenant on Economic, Social, and Cultural Rights, 16 December 1966, 6 ILM 360, 993 UNTS 3, Article 1.1.
Ana Filipa Vrdoljak, ‘Self-Determination and Cultural Rights’, in Francesco Francioni and Martin Scheinin (eds), Cultural Human Rights (Leiden/Boston: Martinus Nijhoff Publishers 2008) 53.
ICJ, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, 25 February 2019, paras 146 and 155.
See e.g. Case Concerning East Timor (Portugal v. Australia), Judgment, 30 June 1995, 1995 ICJ Reports 90, para. 29; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, paras 155–8.
Orakhelashvili, Peremptory Norms in International Law, 51 (noting that ‘[t]he right of peoples to self-determination is undoubtedly part of jus cogens because of its fundamental importance’); Ian Brownlie, Principles of Public International Law, 7th ed. (Oxford: OUP 2008) 511, 582.
ICCPR Article 1.2; ICESCR Article 1.2.
UNDRIP Article 3.
James Summers, Peoples and International Law (Leiden: Brill/Nijhoff 2013) 497.
Jean-Michel Marcoux, ‘Transnational Public Policy as a Vehicle to Impose Human Rights Obligations in International Investment Arbitration’ (2020) 21 JWIT 809–846, 809.
James Anaya, ‘The Right of Indigenous Peoples to Self-Determination in the Postdeclaration Era’ in Claire Charters and Rodolfo Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (Copenhagen: International Work Group for Indigenous Affairs 2009) 184–199, 187.
Lillian Aponte Miranda, ‘The Role of International Law in Intrastate Natural Resource Allocation: Sovereignty, Human Rights, and Peoples-based Development’ (2012) 45 Vanderbilt Journal of Transnational Law 785–840, 813.
Id. 825.
Id. 814.
IACtHR, Case of the Yakye Axa Indigenous Community v. Paraguay, Judgment, 17 June 2005, para. 135, IACtHR (ser. C) No. 125.
IACtHR, Case of the Mayagna (Sumo) Awas Tigni Community v. Nicaragua, Judgment, 21 August 2001, para. 149, IACtHR (ser. C.) No. 79.
Bear Creek Mining Corp. v Peru, Partial Dissenting Opinion, 12 September 2017, para. 7 (internal references omitted).
Álvarez y Marín Corporación S.A., Bartus Van Noordenne, Cornelis Willem Van Noordenne, Estudios Tributarios AP SA, Stichting Administratiekantoor Anbadi c. República de Panamá, ICSID ARB/15/14, laudo, 12 October 2018.
Id. paras 318–319.
Id. para. 327 (‘Las tierras comunales son consideradas elemento fundamental para.la supervivencia y perpetuación de la identidad étnica de los pueblos indígenas.’)
Mavroidis, ‘No Outsourcing of Law?’, 426.
Mostefa Trari-Tani, ‘L’Ordre Public Transnational Devant l’Arbitre International’ (2011) 25 Arab Law Quarterly 89–102, 96.
Bruno Simma and Theodore Kill, ‘Harmonizing Investment Protection and International Human Rights: First Steps towards a Methodology’, in Christina Binder, Ursula Kriebaum, August Reinisch, and Stephan Wittich (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (Oxford: OUP 2009) 702.
Id. (quoting Urbaser S.A. v. Argentine Republic, Award, ICSID ARB/07/26, 8 December 2016, para. 1199).
For discussion, see Lindsey Kingston, ‘The Destruction of Identity: Cultural Genocide and Indigenous Peoples’ (2015) 14 Journal of Human Rights 63–83.
Elisa Novic, The Concept of Cultural Genocide—An International Law Perspective (Oxford: OUP 2016) 9–10.
Lawrence Davidson, Cultural Genocide (New Brunswick, NJ: Rutgers University Press 2012) 18–9.
Leora Bilsky and Rachel Klagsbrun, ‘The Return of Cultural Genocide?’ (2018) 29 EJIL 373–396.
John Docker, ‘Are Settler-Colonies Inherently Genocidal?’ in Dirk Moses, Empire, Colony, Genocide: Conquest, Occupation, and Subaltern Resistance in World History (New York: Berghahn Books 2008) 81, 90–91, and 94.
See Robert van Krieken, ‘Cultural Genocide Reconsidered’ (2008) 12 Australian Indigenous LR 76–82, 77.
Daniele Conversi, ‘Genocide, Ethnic Cleansing, and Nationalism’, in Gerard Delanty and Krishan Kumar (eds), The Sage Handbook of Nations and Nationalism (London: Sage Publications 2006) 326.
Convention on the Prevention and Punishment of the Crime of Genocide, adopted 9 December 1948, in force 12 January 1951, 78 UNTS 277, Article 2.
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ, Judgment, 26 February 2007, para. 161.
Id. para. 320.
Id. para. 344.
Id.
Antonietta Di Blase and Valentina Vadi, ‘Introducing the Inherent Rights of Indigenous Peoples’, in Antonietta Di Blase and Valentina Vadi (eds), The Inherent Rights of Indigenous Peoples in International Law (Rome: University of Rome III 2020) 15–39, 22.
Id.
Novic, The Concept of Cultural Genocide, 9–10.
UNDRIP Article 8(1).
Vittorio Mainetti, ‘Le Principe du Patrimoine Culturel de l’Humanité: de la République des Arts à un Ordre Public International’, in Alberico Gentili: La Salvaguardia dei Beni Culturali nel Diritto Internazionale: Atti del Convegno Dodicesima Giornata Gentiliana (Milano: Giuffré 2008) 581–601.
Pierre Lalive, ‘Transnational (or Truly International) Public Policy and International Arbitration’, in Pieter Sanders (ed.), Comparative Arbitration Practice and Public Policy in Arbitration, ICCA Congress Series (Kluwer Law International 1987) 258–318, para. 34.
Lalive, ‘Réflexions sur un Ordre Public Culturel’, 155.
Bundesgericht (Federal Supreme Court) 1 April 1997, 123 Arrets du Tribunal Federal Suisse (ATF) II 134 (Switz.) (holding that ‘Lorsque, comme l’espèce, la demande porte sur la restitution d’un bien culturel, le juge de l’entraide doit veiller à prendre en compte l’intérêt public international … lié à la protection de ces biens. Ces normes, qui relèvent d’une commune inspiration, constituent autant d’expressions d’un ordre public international en vigueur ou en formation … ces normes … concrétisent l’impératif d’une lutte internationale efficace contre le trafic de biens culturels.’)
Marc-André Renold, ‘An Important Swiss Decision Relating to the International Transfer of Cultural Goods: The Swiss Supreme Court’s Decision on the Giant Antique Mogul Gold Coins’ (2006) 13 International Journal of Cultural Property 361–369, 365.
Id. 368.
Soleimany v. Soleimany [1999] QB 785 (CA).
Giuditta Cordero Moss, ‘Is the Arbitral Tribunal Bound by the Parties’ Factual and Legal Pleadings?’ (2006) 3 Stockholm Int’l Arb. Rev. 1–25, 12.
Jan Paulsson, ‘International Arbitration and the Generation of Legal Norms: Treaty Arbitration and International Law’, ICCA Congress Series (The Hague: Kluwer Law 2006) 888–889.
PCIJ, Case Concerning the Payment in Gold of Brazilian Federal Loans Contracted in France (France v. Brazil), Judgment, 12 July 1929, 1929 PCIJ (ser. A) No. 21, p. 124.
Methanex v. United States of America, UNCITRAL (NAFTA), Final Award of the Tribunal on Jurisdiction and Merits, 3 August 2005, Part IV, ch. C, para. 24.
Id., Part IV, ch. C, para. 24.
Orakhelashvili, Peremptory Norms in International Law, 493.
Emmanuel Gaillard and John Savage (eds), Fouchard, Gaillard, Goldmann on International Commercial Arbitration (The Hague: Kluwer Law International 1999) 861.
Richard Kreindler, ‘Approaches to the Application of Transnational Public Policy by Arbitrators’ (2003) 4 JWIT 239–250, at 244.
Julian Lew, Loukas Mistelis, and Stefan Kröll, Comparative International Commercial Arbitration (The Hague: Kluwer Law International 2003) 93–4.
Pierre-Marie Dupuy, ‘Unification rather than Fragmentation of International Law? The Case of International Investment Law and Human Rights Law’ in Ernst-Ulrich Petersmann, Francesco Francioni, and Pierre-Marie Dupuy (eds), Human Rights in International Investment Law and Arbitration (Oxford: OUP 2009) 60.
Mauro Rubino-Sammartano, International Arbitration Law and Practice (The Hague: Kluwer Law International 2001) 504.
See, for instance Article 42 of the 2021 International Chamber of Commerce (ICC) Arbitration Rules: ‘the Arbitral Tribunal shall act in the spirit of the rules and shall make every effort to make sure that the Award is enforceable at law.’
Andrea Menaker, ‘The Determinative Impact of Fraud and Corruption on Investment Arbitrations’ (2010) 25 ICSID Review 67–75, at 72.
New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, adopted 10 June 1958, in force 7 June 1959, 330 UNTS 38.
New York Convention, Article V.2.
ICSID Convention Article 54(1) (requiring Contracting States to enforce an ICSID award ‘as if it were a final judgment of a court in that State’.).
Id.
Andrea Giardina, ‘International Investment Arbitration: Recent Developments as to the Applicable Law and Unilateral Recourse’ (2007) 5 Law and Practice of International Courts Tribunals 29–39.
Valentina Vadi, ‘Jus Cogens in International Investment Law and Arbitration’ (2015) 46 Netherlands Yearbook of International Law 357–388, 381.
Biloune and Marine Drive Complex Ltd v. Ghana Investments Centre and the Government of Ghana (UNCITRAL), Award on Jurisdiction and Liability, 27 October 1989, 95 ILR 184.
Valentina Vadi, ‘Crossed Destinies: International Economic Courts and the Protection of Cultural Heritage’ (2015) 18 JIEL 51–77.
EDF International, SAUR international, and Léon Participationes Argentinas v. Argentina, ICSID Case No. ARB/03/23, Award, 11 June 2012.
Id. para. 192 (quoting the Respondent’s Rejoinder: ‘it was necessary to enact the Emergency Tariff measures in order to guarantee the free enjoyment of certain basic human rights such as, inter alia, the right to life, health, personal integrity, education, the rights of children and political rights which were directly threatened by the socio-economic institutional collapse suffered by the Argentine Republic.’)
Id. para. 193 (arguing that ‘the non-derogable nature of such rights is said to be conclusive evidence that they are tantamount to jus cogens’.)
Id. paras 909–911.
Id. paras 912–914.
Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. Argentine Republic, ICSID Case No. ARB/03/19, Decision on Liability, 30 July 2010, para. 262.
Azurix v. Argentine Republic, ICSID Case No. ARB/01/12, Award, 14 July 2006, para. 254.
Id. para. 261.
Siemens v. Argentina, ICSID Case No. ARB/02/8, Award, 6 February 2007, para. 75.
Id. para. 79.
Id. para. 114.
CMS Gas Transmission Co. v. Argentina, ICSID Case No. ARB/01/08, Award, 12 May 2005, para. 121.
Clara Reiner and Christoph Schreuer, ‘Human Rights and International Investment Arbitration’, in Pierre-Marie Dupuy, Francesco Francioni, and Ernst-Ulrich Petersman (eds), Human Rights in International Investment Law and Arbitration (Oxford: OUP 2009) 82–96, 90.
Theo Van Boven, ‘Categories of Rights’, in Daniel Moeckli, Sangeeta Shah, and Sandesh Sivakumaran (eds), International Human Rights Law (Oxford: OUP 2018) 135–147, 142.
Alfred Verdross, ‘Forbidden Treaties in International Law’ (1937) 31 AJIL 571–577, at 575.
Sempra Energy International v. The Argentine Republic, ICSID Case No. ARB/02/16, Award, 28 September 2007, para. 332.
Id.
Id.
Continental Casualty v. Argentine Republic, ICSID Case No. ARB/03/9, Award, 5 September 2008, para. 192.
Id. para. 227.
Antonio Cassese, ‘For an Enhanced Role of Jus Cogens’, in Antonio Cassese (ed.), Realizing Utopia: the Future of International Law (Oxford: OUP 2012) 158–171, 166.
Maria Luz Arbitration, award rendered by the Czar of Russia, 17–19 March 1875.
ICC, International Court of Arbitration, Case No. 1110 of 1963, Y.B. Comm. Arb. 47, 61.
World Duty Free v. Republic of Kenya, ICSID Case No. ARB/00/7, Award, 4 October 2006.
Id. para. 157.
Id.
Id. para. 181.
Inceysa Vallisoletana SL v. Republic of El Salvador, ICSID Case No. ARB/03/26, Award, 2 August 2006, paras 263–4.
Plama Consortium Ltd v. Republic of Bulgaria, ICSID Case No. ARB/03/24, Award, 27 August 2008.
Phoenix Action Ltd v. Czech Republic, Case No. ARB/06/5, Award, 15 April 2009, para. 78.
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 1869 UNTS 401, 33 ILM 1226 (1994).
United States—Standards for Reformulated and Conventional Gasoline, Appellate Body Report, adopted 20 May 1996, WT/DS2/9, p. 17 (holding that the fundamental rule of treaty interpretation set out in Article 31(1) of the VCLT ‘has attained the status of a rule of customary or general international law’); Japan—Taxes on Alcoholic Beverages, Appellate Body Report, WT/DS8/AB/R; WT/DS10/AB/R; WT/DS11/AB/R, 4 October 1996 (holding that Article 32 of the VCLT, dealing with supplementary means of interpretation, ‘has also attained the same status.’)
Vienna Convention on the Law of Treaties, adopted 23 May 1969, in force 27 January 1980, 1155 UNTS 331.
See generally Campbell McLachlan, ‘Investment Treaties and General International Law’ (2008) 57 ICLQ 361–401, 369 (explaining the key relevance of this provision for defragmenting international law); Rainer Hofmann and Christian Tams (eds), International Investment Law and General International Law: From Clinical Isolation to Systemic Integration? (Nomos 2011); Trinh Hai Yen, The Interpretation of Investment Treaties (Leiden: Brill 2014) 55–61.
Article 31(1) VCLT.
Michael Waibel, ‘Demystifying the Art of Interpretation’ (2011) 22 EJIL 571–588, 574.
Panel Report, US—Section 301–310 of the Trade Act of 1974, WT/DS152/R, adopted 27 January 2000, para.7.22.
Id. Compare with ICJ, Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections, Judgment, ICJ Reports 2017, p. 29, para. 64.
Richard Gardiner, Treaty Interpretation (Oxford: OUP 2008) 9.
Waibel, ‘Demystifying the Art of Interpretation’, 575.
Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body (Oxford: OUP 2009) 38.
Urbaser v. Argentina, Award, ICSID Case No. ARB/07/26, 8 December 2016, para. 1200.
ICJ, Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, ICJ Reports 2019 (I), p. 28, para. 57, and p. 38, para. 91; ICJ, Whaling in the Antarctic (Australia v. Japan), Judgment, ICJ Reports 2014, p. 251, para. 56; Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, ICJ Reports 2012 (II), p. 449, para. 68.
Article 31.2 VCLT.
Agreement Establishing the World Trade Organization, adopted 15 April 1994, entered into force 1 January 1995, 33 ILM 1144 (WTO Agreement), preamble.
Agreement on Trade-Related Aspects of Intellectual Property Rights, Agreement Establishing the World Trade Organization, Annex 1C, adopted 15 April 1994, entered into force 1 January 1995, 1869 UNTS 299, preamble.
Andrew Newcombe and Luis Paradell, Law and Practice of Investment Treaties (Aalphen aan den Rijn: Wolters Kluwer 2009) 123.
Michael Waibel, ‘International Investment Law and Treaty Interpretation’, in Rainer Hoffman and Christian Tams (eds), International Investment Law and General International Law: From Clinical Isolation to Systemic Integration (Baden Baden: Nomos 2011) 40.
Id.
Franklin Berman, ‘Evolution or Revolution?’, in Chester Brown and Kate Miles (eds), Evolution in Investment Treaty Law and Arbitration (Cambridge: CUP 2011) 668.
Amco Asia Corp. v. Republic of Indonesia, ICSID Case No. ARB/81/01, Award on Jurisdiction, 24 September 1985, para. 23.
Joseph Charles Lemire v. Ukraine, ICSID Case No. ARB/06/18, Decision on Jurisdiction and Liability, 21 January 2010, para. 273.
VCLT, Article 31(3)(c).
Ian Sinclair, The Vienna Convention on the Law of Treaties (Manchester: Manchester University Press 1984) 139.
Campbell McLachlan, ‘The Principles of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 ICLQ 279–319, 280.
John Gaffney, ‘Going to Pieces without Falling Apart: Waelde’s Defence of “Specialisation” in the Interpretation of Investment Treaties’, in Jacques Werner and Arif Hyder Ali (eds), A Liber Amicorum: Thomas Wälde: Law Beyond Conventional Thought (London: CMP 2009) 57.
Philippe Sands, ‘Treaty, Custom, and the Cross-Fertilization of International Law’ (1998) 1 Yale Human Rights & Development Law Journal 85–106, 102.
Panel Reports, EC—Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R, 21 November 2006, paras 7.92–93; Argentina—Poultry Anti-Dumping Duties, WT/DS241/R, adopted 19 May 2003, footnote 64 to para. 7.41.
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, para. 471.
Sands, ‘Treaty, Custom, and the Cross-Fertilization of International Law’, 102.
Id. 103.
Organization of African Unity, African Charter on Human and Peoples’ Rights, 27 June 1981, in force 21 October 1986, 21 ILM 58 (1982).
African Charter on Human Rights and Peoples’ Rights, Article 60.
See e.g. Perenco v. Ecuador, ICSID Case No. ARB/08/6, Interim Decision on the Environmental Counterclaims, 11 August 2015, para. 322.
McLachlan, ‘The Principles of Systemic Integration’, 311.
Asian Agricultural Products Ltd v. Republic of Sri Lanka (AAPL v. Sri Lanka), ICSID Case No. ARB/87/3, Award, 27 June 1990.
Id. para. 21.
WTO Appellate Body, United States—Standards for Reformulated and Conventional Gasoline, 29 April 1996, WTO Doc WT/DS2/AB/R, 17.
Campbell McLachlan, Laurence Shore, and Matthew Weiniger, International Investment Arbitration: Substantive Principles (Oxford: OUP 2008) 16.
VCLT Article 53. On jus cogens and international investment law, see Valentina Vadi, ‘Jus Cogens in International Investment Law and Arbitration’ (2015) 46 Netherlands Yearbook of International Law 357–388.
Case Concerning Oil Platforms (Iran v. United States), Judgment, 6 November 2003, ICJ Reports 2003, 161, Separate Opinion by Judge Higgins, para. 49.
South American Silver Limited v. the Plurinational State of Bolivia, PCA Case No. 2013-15, Claimant’s Statement of Claim and Memorial, 24 September 2014, para. 9.
South American Silver Limited v. the Plurinational State of Bolivia, Objections to Jurisdiction, Admissibility and Counter-Memorial on the Merits, para. 192
Id. para. 193.
South American Silver Limited v. The Plurinational State of Bolivia, PCA Case No. 2013-15, Award, 22 November 2018, para. 208.
Id. para. 210.
Id. para. 212.
Id. para. 214.
Id. paras 215–6
Chang-Fa Lo, ‘The Difference between Treaty Interpretation and Treaty Application and the Possibility to Account for Non-WTO Treaties during WTO Treaty Interpretation’ (2012) 22 Indiana Int’l & Comp. LR 1–26, 9
Thomas W. Wälde, ‘Interpreting Investment Treaties: Experiences and Examples’, in Christina Binder, Ursula Kriebaum, August Reinisch, and Stephan Wittich (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (Oxford: OUP 2009) 774.
Universal Declaration of Human Rights (UDHR), GA Res. 217 (III) UNGAOR 3rd Sess. UN Doc. A/810 (1948) 10 December 1948.
Micula and Others v. Romania, Decision on Jurisdiction and Admissibility, ICSID Case No. ARB/05/20, 24 September 2008, paras 86–8.
Saluka Investments BV v. Czech Republic, Partial Award, PCA UNCITRAL, 17 March 2006, paras 254–5.
Saipem v. Bangladesh, ICSID Case No. ARB/05/07, Award, 30 June 2009, para. 149.
See Francesco Francioni, ‘La Protezione Internazionale dei Beni Culturali: un Diritto Consuetudinario in Formazione?’, in Paolo Benvenuti and Rosario Sapienza (eds), La Tutela Internazionale dei Beni Culturali nei Conflitti Armati (Milano: Giuffré 2007) 12. But see Craig Forrest, International Law and the Protection of Cultural Heritage (Abingdon: Routledge 2010) 52.
Southern Pacific Properties (Middle East) Ltd v. Arab Republic of Egypt, ICSID Case No. ARB/84/3, Award on the Merits, 20 May 1992, para. 158.
Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Case No. ARB/05/8 Award, 11 September 2007, para. 396.
Wälde, ‘Interpreting Investment Treaties’, 774.
ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 21 June 1971, ICJ Reports 1971, 31.
AB Report, United States–Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, 12 October 1998, para. 152.
See Clara Reiner and Christoph Schreuer, ‘Human Rights and International Investment Arbitration’, in Pierre-Marie Dupuy, Francesco Francioni, and Ernst-Ulrich Petersmann (eds), Human Rights in International Investment Law and Arbitration (Oxford: OUP 2009) 82.
See e.g. Biloune and Marine Drive Complex Ltd v. Ghana Investments Centre and the Government of Ghana, Award on Jurisdiction and Liability, 27 October 1989, 95 ILR 184. See also Patrick Mitchell v. Dem. Rep. Congo, ICSID Case No. ARB/99/7, Decision on the Application for Annulment of the Award, 1 November 2006, para. 48.
CMS Gas Transmission Co. v. Argentine Republic, ICSID Case No. ARB/01/8, Award, 12 May 2005, para. 114 (2005) 44 ILM 1205, 1217.
Mondev v. United States of America, ICSID Case No. ARB/(AF)/99/2, Award, 11 October 2002, paras 139–143.
Stephan W. Schill and Vladislav Djanic, ‘International Investment Law and Community Interests’, SIEL Working Paper No. 2016/01 (2016), 1–27, 4.
Vadi, Cultural Heritage in International Investment Law and Arbitration, 277–286.
Schill and Djanic, ‘International Investment Law and Community Interests’, 15.
See generally Andrew Newcombe, ‘General Exceptions in International Investment Agreements’, in Marie Claire Cordonnier Segger, Markus Gehring and Andrew Newcombe (eds), Sustainable Development in World Investment Law (The Hague: Kluwer 2011) 355.
Jorge E. Viñuales, ‘Seven Ways of Escaping a Rule: Of Exceptions and their Avatars in International Iaw’, in Laurand Bartels and Federica Paddeu (eds), Exceptions in International Law (Oxford: OUP 2020) chapter 5.
OECD Multilateral Agreement on Investment, Consolidated Text and Commentary, Draft DAFFE/MAI/NM(97)2.
The Trans-Pacific Strategic Economic Partnership Agreement, Brunei-Chile-Singapore-New Zealand, 18 July 2005, in force 28 May 2006, available at www.mfat.govt.nz/downloads/trade-agreement/transpacific/mainagreement.pdf (hereinafter Trans-Pacific SEP).
Id., Article 19(1)(3).
China–New Zealand Free Trade Agreement, in force 1 October 2008, Article 200(3). The text is available at www.chinafta.govt.nz.
Treaty between the Government of the United States of America and the Government of the Republic of Lithuania for the Encouragement and Reciprocal Protection of Investment, signed on 14 January 1998, Annex, para. 3.
See e.g. Convention on Conservation of Migratory Species, 23 June 1979, 19 ILM 11, Article 3.5; Interim Convention on Conservation of North Pacific Fur Seals, 9 February 1957, 314 UNTS 105, Article 7; International Convention for the Regulation of Whaling, 2 December 1946, 161 UNTS 72, Article III(13)(b).
Canada-Peru Free Trade Agreement, 29 May 2008, Annex II, Reservations for Future Measures, Schedule of Peru.
See Vadi, Cultural Heritage in International Investment Law and Arbitration, 279–80.
Treaty of Waitangi (United Kingdom–New Zealand), 6 February 1840, available at www.nzhistory.net.nz/politics/treaty/read-the-treaty/english-text.
Trans-Pacific SEP Article 19(5)(1).
Id. Article 19(5)(2).
Energy Charter Treaty (ECT), signed on 17 December 1994, in force 16 April 1998, 34 ILM 360 (1995).
ECT Article 24.
M. Sornarajah, The International Law on Foreign Investment (Cambridge: CUP 2010) 120–1, 366–7.
Victoria Tauli-Corpuz, Special Rapporteur of the Human Rights Council on the Rights of Indigenous Peoples, Report on the Impact of International Investment and Free Trade on the Human Rights of Indigenous Peoples, UN Doc A/70/301 (2015).
Id. para. 23.
Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, 6 November 1998, para. 130.
Lilian Richieri Anania, ‘Cultural Diversity and Regional Trade Agreements: The European Union Experience with Culture Cooperation Frameworks’, SIEL Working Paper (July 2012).
The European Agenda for Culture in a Globalizing World was endorsed by the Council of the European Union in November 2007. Council of the European Union, Resolution of 16 November 2007 on a European Agenda for Culture, 2007/C 287/01, OJEU, 29 November 2011.
Id.
Council of the European Union, Council Conclusions on the Promotion of Cultural Diversity and Intercultural Dialogue in the External Relations of the Union and its Member States, Brussels, 20 November 2008, at p. 4.
Id.
Lilian Richieri Hanania, ‘Trade, Culture, and the European Union Cultural Exception, (2019) 25 International Journal of Cultural Policy 568–581, 568.
Protocol III on Cultural Cooperation to the Cariforum EPA available at http://ec.europa.eu/culture/our-policy-development/doc/cultural_cooperation_protocol.pdf.
Cariforum EU EPA Article 150.
Letter of Transmittal by George W. Bush to the Senate of the United States, 12 March 2004, available at http://tcc.export.gov/%5C%5C/static/TGA.Poland_protocol.pdf.
Additional Protocol between the United States of America and the Republic of Poland to the Treaty between the United States of America and the Republic of Poland concerning Business and Economic Relations of 21 March 1990, signed in Brussels on 12 January 2004, Article 1(b). The text of the Additional Protocol is available at http://tcc.export.gov/%5C%5C/static/TGA.Poland_protocol.pdf.
See Luke Eric Peterson, ‘Bush Administration Sets Process in Motion to Amend BIT s with Eastern and Central Europe’, Investment Law & Policy Weekly News Bulletin, 16 February 2004.
Canada–United States Free Trade Agreement (CUSFTA) entered into force on 1 January 1989, 27 ILM (1988) 281 ff.
CUSFTA Article 2005.
NAFTA Article 2106.
The United States–Mexico–Canada Agreement (USMCA) entered into force on 1 July 2020.
Gilbert Gagné, ‘Trade and Culture: the United States’ (2019) 25 International Journal of Cultural Policy 615–628.
Australia–US Free Trade Agreement (AUSFTA) in force 1 January 2005.
AUSFTA Annex 1, p. 14.
United States–Chile Free Trade Agreement, in force 1 January 2004.
US–Singapore FTA, in force 1 January 2014, Annex 8A.
Laurence Mayer-Robitaille, ‘L’Impact des Accords de Libre-Échange Américains sur le Statut Juridique des Biens et Services Culturels’ (2004) 50 Annuaire Français de Droit International 715–730, 727.
United Parcel Service of America Inc. v. Government of Canada, Award on the Merits, 24 May 2007, 46 ILM 922 (2007).
Id. paras 156–60.
Id. para. 80.
NAFTA Annex 2106.
UPS v Canada, Award.
WTO Panel Report, Canada—Certain Measures Concerning Periodicals, WT/DS31/R, 15 March 1997; WTO Appellate Body Report, Canada—Certain Measures Concerning Periodicals, WT/DS31/AB/R, 30 June 1997.
Karl P Sauvant and José E Alvarez, ‘Introduction—International Investment Law in Transition’, in José E. Alvarez and Karl P. Sauvant (eds), The Evolving International Law Regime (Oxford: OUP 2011) xlii.
PCIJ, Settlers of German Origin in Poland, Advisory Opinion 6, 10 September 1923, (1923) PCIJ. (ser. B) No. 6.
PCIJ, Minority Schools in Albania, Advisory Opinion, 6 April 1935, (1935) PCIJ Ser. AB No. 64.
Athanasios Yupsanis, ‘The Concept and Categories of Cultural Rights in International Law: Their Broad Sense and the Relevant Clauses of the Human Rights Treaties’ (2009–2010) 37 Syracuse JIL & Commerce 241.
PCIJ, Minority Schools in Albania, p. 19.
Human Rights’ Committee, CCPR General Comment No. 18: Non-discrimination, adopted 10 November 1989, para. 10.
CCD Article 8.
Alexandras Kolliopoulos, ‘La Convention de l’UNESCO sur la Protection et la Promotion de la Diversité des Expressions Culturelles’ (2005) 51 Annuaire Français de Droit International 487–511, 498.
Piero Foresti, Laura De Carli, and Others v. Republic of South Africa, ICSID Case No. ARB (AF)/07/1, Award, 4 August 2010.
Id. para. 59.
Id. para. 56.
Id. paras 58–9.
Id. para. 78.
Id. para. 69
Id. paras 74–5 and 78.
See e.g. Agreement Between the Czech Republic and the Republic of South Africa for the Promotion and Reciprocal Protection of Investments, 14 December 1998, Article 3(3)(c) (providing that: ‘[the guarantees of non-discrimination for foreign investors] shall not be construed so as to oblige one Party to extend to the investors of the other the benefit of any treatment, preference or privilege which may be extended by the Former Party by virtue of … any law or other measure the purpose of which is to promote the achievement of equality in its territory, or designed to protect or advance persons, or categories of persons, previously disadvantaged by unfair discrimination.’)
Schill and Djanic, ‘International Investment Law and Community Interests’, 16.
Id.
Kenneth Vandevelde, ‘Rebalancing Through Exceptions’ (2013) 17 Lewis & Clark LR 449, 451.
Francesco Francioni, ‘Access to Justice, Denial of Justice, and International Investment Law’ (2009) 20 EJIL 729–747.
Eric De Brabandere, ‘Human Rights and International Investment Law’, in Markus Krajewski and Rhea T. Hoffmann (eds), Research Handbook on Foreign Direct Investment (Cheltenham: Edward Elgar 2019) 619–645.
Andrea Bjorklund, ‘The Role of Counterclaims in Rebalancing Investment Law’ (2013) 17 Lewis & Clark LR 461–480, 464.
Id. 461.
India–Netherlands Agreement for the Promotion and Protection of Investments, 6 November 1995, Article 9.1.
Kryvoi, Yaraslau, ‘Counterclaims in Investor-State Arbitration’ (2012) 21 Minnesota JIL 216–252.
Id.
ICSID Convention, Article 46 (stating that ‘[e]xcept as the parties otherwise agree, the Tribunal shall, if requested by a party, determine any incidental or additional claims or counter-claims arising directly out of the subject matter of the dispute, provided that they are within the scope of the consent of the parties and are otherwise within the jurisdiction of the centre’.)
Bjorklund, ‘The Role of Counterclaims in Rebalancing Investment Law’, 473.
Jean Kalicki, ‘Counterclaims by States in Investment Arbitration’, Investment Treaty News, 14 January 2013, 5.
Burlington v. Ecuador, ICSID Case No. ARB/08/5, Decision on Counterclaims, 7 February 2017, para. 275 (holding Burlington liable for violating Ecuador’s domestic law implementing international standards); Urbaser v. Argentina, ICSID Case No. ARB/07/26, Award, 8 December 2016, para. 1192 (holding that a bilateral investment treaty ‘[is] not a set of rules defined in isolation without consideration given to rules of international law.’)
Burlington v. Ecuador, Decision on Counterclaims, at para. 60 (affirming jurisdiction on counterclaims, as the claimant did not object to the Tribunal’s jurisdiction).
Al-Warraq v. Indonesia, UNCITRAL, Final Award, 15 December 2004, para. 155 (allowing Indonesia to bring a counterclaim to seek compensation of the investor’s failure to comply with domestic banking law.)
European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, Reports of the Panel, WT/DS400/R and WT/DS401/R, 25 November 2013; European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, Appellate Body Report, WT/DS400/AB/R and WT/DS401/AB/R, 22 May 2014.
Glamis Gold, Ltd v. United States of America, Award, 8 June 2009, [2009] 48 ILM 1039.
Yu Kanosue, ‘When Land is Taken Away: States Obligations under International Human Rights Law Concerning Large-Scale Projects Impacting Local Communities’ (2015) 15 Human Rights LR 643–667, at 657.
William Shipley, ‘What’s Yours is Mine: Conflict of Law and Conflict of Interest Regarding Indigenous Property Rights in Latin American Investment Dispute Arbitration’ (2014) 11 TDM 1.
Valentina Vadi, ‘Heritage, Power, and Destiny: The Protection of Indigenous Heritage in International Investment Law and Arbitration’ (2018) George Washington International LR 101–155.
Stephan W. Schill, ‘Crafting the International Economic Order: The Public Function of Investment Treaty Arbitration and Its Significance for the Role of Arbitrator’ (2010) 23 Leiden JIL (2010), 401–30, 422.
ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) 1986 ICJ Reports 14, para. 29 (holding that ‘it [is] the duty of the Court itself to ascertain and apply the relevant law in the given circumstances of the case, the burden of establishing or proving rule of international law cannot be imposed upon any of the parties for the law lies within the judicial knowledge of the Court.’).
Panel Report, US—Section 301 Trade Act, paras 7.15–7.16; Appellate Body Report, EC—Tariffs Preferences, WT/DS246/AB/R, 20 April 2004, para. 105.
See e.g. British Petroleum Exploration Co (Libya) Ltd. v. The Government of the Libyan Arab Republic, Award, 10 October 1973, 53 ILR 297 (1979) (finding that an arbitral tribunal is ‘both entitled and compelled to undertake an independent examination of the legal issues deemed relevant by it, and to engage in considerable legal research going beyond the confines of the materials relied upon by the Claimant.’); Iurii Bogdanov, Agurdino-Invest Ltd. and Agurdino-Chimia JSC v. Republic of Moldova, Award, 22 September 2005, SCC Case No. 093/2004 pp. 9–10.
Luke Bastin ‘Amici Curiae in Investor–State Arbitrations: Two Recent Decisions’ (2013) 20 Australian International Law Journal 95–104, 101.
International Criminal Court, UNESCO, Amicus Curiae Observations, submitted pursuant to Rule 103 of the Rules of Procedure and Evidence, in the Case of Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, 2 December 2016.
Id. para. 1.
Inter-American Commission of Human Rights, Amicus Curiae, Submission by the United Nations Special Rapporteur on the Rights of Indigenous Peoples, José Francisco Calí Tzay, in the case of Comunidades y Rondas Campesinas de Cajamarca y sus líderes v. Peru, 15 March 2022.
Megan Davis, ‘New Developments in International Advocacy: Amicus Curiae and the World Trade Organisation’ (2003) 5 Indigenous Law Bulletin 14.
Id.
Glamis Gold Ltd v. United States, UNCITRAL (NAFTA) Award, 8 June 2009, para. 286.
Valentina Vadi, ‘Natural Resources and Indigenous Cultural Heritage in International Investment Law and Arbitration’, in Kate Miles (ed.), Research Handbook on Environment and International Investment Law (Cheltenham: Edward Elgar 2019) 464–479, 474.
See Grand River Enterprise Six Nations Ltd. et al. v. United States of America, Award, 12 January 2011, para. 60.
Bear Creek Mining Corp. v. Peru, Award, ICSID Case No. ARB/14/21, 30 November 2017, para. 663.
Bear Creek Mining Corp. v. Peru, Procedural Order No. 5, 21 July 2016.
Id. para. 40.
Bear Creek Mining Corporation v. Republic of Peru, Amicus Curiae Brief Submitted by the Association of Human Rights and the Environment et al., 9 June 2016, at 2.
Id. at 3.
Id. at 7.
Id. at 7.
Bear Creek Mining Corporation v. Republic of Perú, Award, para. 226.
Id. para. 218.
Id.
Bear Creek Mining Corporation v. Republic of Peru, Amicus Curiae Brief Submitted by the Association of Human Rights and the Environment et al., at 14.
Id. at 2.
Appellate Body report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, para. 104.
Appellate Body report, European Communities—Measures Affecting Asbestos and Asbestos-containing Products, WT/DS135/AB/R, adopted 5 April 2001, paras 51–2.
Appellate Body Report, European Communities—Trade Description of Sardines, WT/DS231/AB/R, para. 167.
Bernhard von Pezold and Others v. Zimbabwe, ICSID Case No. ARB/10/15, Procedural Order No. 2, 26 June 2012, para. 49.
Bernhard von Pezold and Others v. Republic of Zimbabwe, ICSID Case No ARB/10/15.
Bernhard von Pezold and others v. Republic of Zimbabwe, ICSID Case No ARB/10/15, Procedural Order No 2, 26 June 2012.
Id. paras 18–21.
Id. para. 25.
Id. para. 58.
Id. para. 32.
Id. para. 39.
Id. para. 5
Bernhard von Pezold v. Zimbabwe, Award, para. 64.
Id. para. 62.
Id. para. 56.
Bernhard von Pezold v. Zimbabwe, Award, para. 49.
Id. para. 57.
Id. paras 57 and 60.
Id. para. 60.
Astrid Wiik, Amicus Curiae Before International Courts and Tribunals (Baden-Baden: Nomos 2018) 27.
Id. 28 (reporting these criticisms).
Van den Bossche, The Law and Policy of the World Trade Organization, 195.
EC—Asbestos, Appellate Body report, paras 51–2.
See e.g. United States—Measures Affecting the Production and Sale of Clove Cigarettes, Appellate Body report, WT/DS406/AB/R, 4 April 2012, para. 10.
See Petros Mavroidis, ‘Amicus Curiae Briefs Before the WTO: Much Ado About Nothing’, in Armin von Bogdandy, Petros C. Mavroidis, and Yves Meny (eds), European Integration and International Co-ordination, Studies in Transnational Economic Law in Honour of Claus-Dieter Ehlermann (Kluwer: Leiden 2002) 317–329.
Isabelle Feichtner, ‘The Waiver Power of the WTO: Opening the WTO for Political Debate on the Reconciliation of Competing Interests’ (2009) 20 EJIL 7–28.
WTO Agreement Article IX:2.
Id. Article IX:3–4.
Id. Article X:1.
Some authors, however, have interpreted the Doha Declaration on the TRIPS Agreement and Public Health as an authoritative interpretation. See Holger Hestermeyer, Human Rights and the WTO: The Case of Patents and Access to Medicines (Oxford: OUP 2007) 281.
See e.g. NAFTA Free Trade Commission Notes of Interpretation of Certain Chapter 11 Provisions, 31 July 2001.
Cosette Creamer and Zuzanna Godzimirska, ‘Engagement within the World Trade Organization: A Functional Substitute for Authoritative Interpretations’ (2016) 48 New York University Journal of International Law & Politics 413–462, 421.
Tarcisio Gazzini, ‘Can Authoritative Interpretation under Article IX:2 of the Agreement Establishing the WTO Modify the Rights and Obligations of Members?’ (2008) 57 ICLQ 169–81.
Isabel Feichtner, ‘Subsidiarity in the World Trade Organization: The Promise of Waivers’ (2016) 79 Law and Contemporary Problems 75–97; Isabel Feichtner, The Law and Politics of WTO Waivers: Stability and Flexibility in Public International Law (Cambridge: CUP 2011).
Creamer and Godzimirska, ‘Engagement within the World Trade Organization’, 421.
Appellate Body Report, European Communities—Regime for the Importation, Sale, and Distribution of Bananas – Second Recourse to Article 21.5 of the DSU by Ecuador, WT/DS27/AB/RW2, 26 November 2008, para. 382.
WTO General Council, Waiver Concerning Kimberley Process Certification Scheme for Rough Diamonds: Decision of 15 May 2003, 27 May 2003, WTO Doc WT/L/518. The waiver has been extended since then. WTO, Extension of Waiver Concerning Kimberley Process Certification Scheme for Rough Diamonds, Waiver Decision, 26 July 2018, WT/L/1039 (extending the waiver as of 1 January 2019 through 31 December 2024).
See e.g. UNSC Res 1459, 28 January 2003, UN Doc S/RES/1459 and UNGA Res 57/302, 30 April 2002, UN Doc A/RES/57/302.
Joost Pauwelyn, ‘WTO Compassion or Superiority Complex?: What to Make of the WTO Waiver for Conflict Diamonds’ (2003) 24 Michigan JIL 1177–1206.
Id. 1177.
WTO, Council for Trade-related Aspects of Intellectual Property Rights, Waiver from Certain Provisions of the TRIPS Agreement for the Prevention, Containment, and Treatment of COVID-19, 25 May 2021, IP/C/W/669/Rev. 1 (detailing the proposal).
WTO, 12th Ministerial Conference, Ministerial Decision on the TRIPS Agreement, 17 June 2022, WT/MIN(22)/W/15/Rev.2.
WTO Agreement Article X:1–2.
Creamer and Godzimirska, ‘Engagement within the World Trade Organization’, 421.
Arrangements for Effective Cooperation with other Intergovernmental Organizations-Relations Between the WTO and the United Nations, signed on 15 November 1995.
The United Nations–World Bank Group Strategic Partnership Framework for the 2030 Agenda, Brief, 23 May 2018.
Florence Agreement on the Importation of Educational, Scientific, and Cultural Materials, New York, 22 November 1950, in force, 11 May 1952.
WTO Agreement, Article V.
For instance, WIPO–WTO Colloquium Papers are a peer-reviewed academic journal, published jointly by the World Intellectual Property Organization and the WTO each year since 2010 to examine intellectual property-related topics that are of common concern to the two organizations.
WTO, Public Forum 2016, Session 46, Held on 28 September 2016, Trade and Inclusive Access to Knowledge.
See Christopher Graber, ‘The New UNESCO Convention on Cultural Diversity: A Counterbalance to the WTO’ (2006) 9 JIEL 553–574, 571.
Thailand—Restrictions on Importation of and Internal Taxes on Cigarettes, Panel Report, 7 November 1990, BISD 37S/200, para.5; Australia—Certain Measures concerning Trademarks, Geographical Indications, and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, Reports of the Panels, WT/DS435/R, WT/DS441/R WT/DS458/R, WT/DS467/R, 28 June 2018, paras 1.58–1.62. But see United States—Measures Affecting the Production and Sale of Clove Cigarettes, Appellate Body Report, WT/DS406/AB/R, 4 April 2012, para. 11 (noting that ‘the Division did not deem it necessary to request assistance from the WHO.’)
European Communities—Measures Affecting the Approval and Marketing of Biotech Products (EC—GMO s), Panel Report, WT/DS291/R, 29 September 2006, para. 7.31.
VCLT Article 31.3.c.