I am human and nothing human is alien to me.1
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Cultural heritage can be an engine of growth and welfare, being central in wealth creation and people’s lives, and enriching their existence in both material and immaterial sense. Cultural heritage is real wealth, something humans value in life, reflecting the diversity of cultures to which all peoples contribute and enriching the fabric of the international community as a whole. It is a legacy for everyone as it reveals the past and yields a sense of identity for present and future generations. The effective protection of cultural heritage can benefit all humanity. Governing cultural resources in their diversified forms, international cultural heritage law includes extremely diverse components and constitutes a good example of legal pluralism. The almost universal ratification of UNESCO instruments indicates that the international community perceives the protection of cultural heritage as an important public interest.
In parallel, international economic law has become a sophisticated field of international law. International economic activities and their regulation are social phenomena and have pervasive effects on everyday life.2 As traders and investors ‘cross boundaries,’ ‘settle in new communities,’ and commercialize their products and services, international trade and foreign direct investments are ‘part and parcel of social life.’3 By regulating global economic interactions, international economic law has a pervasive character, having an impact on the life of local communities worldwide.
International economic law broadly protects investors’ and trading nations’ rights to encourage foreign direct investment and free trade. A potential tension exists when a state adopts cultural policies interfering with foreign investments and free trade, as this may breach international investment and
The linkage between trade, investment, and heritage poses challenges and opportunities for international cultural heritage law, international economic law, and general international law. From the perspective of international cultural heritage law, the magnetism of the WTO DSM and arbitral tribunals has put cultural governance to a test. On the one hand, it shows its lack of dedicated heritage courts and tribunals. Concerns remain with regard to the effectiveness of cultural governance, as international economic courts have a limited mandate and cannot adjudicate the eventual violation of international cultural heritage law unless they receive the mandate to do so. There is a risk that arbitral tribunals and WTO courts dilute or neglect significant cultural aspects, eventually emphasizing economic interests. These tribunals may not constitute the most suitable courts for settling cultural heritage-related disputes. The institutional structure of international economic courts, their processes, and the outcomes they sanction are far from what would be required of a body to which cultural heritage authority could be entrusted.
On the other hand, the review of domestic regulations by international economic courts can improve good cultural governance and the transparent pursuit of legitimate cultural policies. The WTO DSM and arbitral tribunals impose schemes of good governance by requiring the respect of international economic law provisions and by adopting general principles of law, such as due process. Such review can be in line with good cultural governance as demanded by the relevant UNESCO instruments, in that unrestricted state sovereignty may—and in some cases does—jeopardize the protection of cultural heritage and/or individual entitlements. In fact, requirements such as due process, transparency, and reasonableness can contribute, albeit indirectly, to the protection of cultural heritage and ensure an appropriate balance between public and private interests. Although these requirements are not per se specific to the cultural field but are equally applicable in adjudications relating to other interests like environmental protection, their application to the cultural sector helps shape cultural heritage law.
From the perspective of international economic law, international economic courts may face difficulties in finding an appropriate balance between the different interests concerned. They may not have specific expertise on international cultural heritage law, nor do they generally have the mandate to interpret and apply such a field of law. They are tribunals of limited jurisdiction
This does not mean, however, that international economic courts should not consider cultural entitlements. Rather, the collision between international economic law and other fields of international law can be solved through international economic law itself, albeit to a limited extent. This book identifies two main avenues for integrating cultural concerns into the fabric of international economic law and facilitating the consideration of cultural heritage in international economic disputes.
On the one hand, de lege ferenda, since international investment treaties are renegotiated periodically, there is scope for inserting ad hoc clauses within these treaties to protect cultural heritage. This process is already underway, as states have inserted references to important values in treaty preambles, exceptions, carve-outs, and annexes. Such provisions protect paramount interests and facilitate tribunals’ duty to consider international law when interpreting and applying international investment provisions. Analogously, international trade law is not written in stone; rather, rounds of negotiations regularly take place. Moreover, amendments, waivers, and authoritative interpretations are legal instruments to reconcile conflicting norms and interests.
On the other hand, de lege lata, international economic courts can consider cultural entitlements within the current legal framework. The very text of international economic law instruments refers to non-economic values. For instance, international investment agreements have multiple goals usually expressed in their preambles.5 Analogously, the preamble of the WTO Agreement stresses the importance of ‘raising standards of living’ and ‘sustainable development.’6 Therefore, such objectives should not be exclusively identified with the increase of foreign investments or trade liberalization.7 Moreover, according to customary
International economic courts should be sympathetic to amicus curiae briefs, particularly those presented by affected Indigenous and local communities, as well as international organizations, 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, even though participation as amici curiae does not amount to a right. It would also strengthen institutional cooperation between the WTO, the World Bank, and other international organizations.
From the perspective of general international law, the debate on the unity or fragmentation of international law has fostered an increasing awareness that there are no self-contained regimes in international law. International economic law and international cultural heritage law are branches of international law, rooted in, and expressing the aspirations of the international community as a whole. The Appellate Body clarified that GATT should not be read in isolation from public international law.9 The same is undoubtedly true of international investment law.10 Rather, customary rules of treaty interpretation, as restated by the VCLT, can bridge the gap between different legal spaces. According to the principles of systemic interpretation, as restated by Article 31(3)(c) of the VCLT, together with the context, international courts should consider any relevant rule of international law applicable in the relationship between the parties. Other interpretive criteria, such as the lex posterior and lex specialis rules, can also offer additional tools for connecting different subsystems of international law. However, the mechanical use of these criteria should be avoided, as different branches of international law have different aims and objectives and do not entirely overlap. International economic courts are not
This book has surveyed several heritage-related disputes, showing that international economic law has not developed any institutional machinery for the protection of cultural heritage through dispute settlement. After all, international economic law is not intended to protect cultural heritage. However, in recent years a jurisprudential trend has emerged that considers cultural heritage. Arbitral tribunals have paid increasing attention to cultural concerns, holding that they can constitute a legitimate distinction rather than discrimination, or considering cultural elements in their interpretation of international economic law. Arbitral tribunals have increasingly held that only lawful investments are protected under international investment law. Moreover, they have often referred to international law principles and cases in their reasoning. They have not limited themselves to purely economic standards of valuation. The fact that economic standards of valuation are not the only ones that are taken into consideration by arbitral tribunals is distinctive. By neglecting broader cultural concerns, an inward-looking approach may weaken the effectiveness and legitimacy of international economic courts and result in a ‘superiority complex’ and isolationism.11 The pathways of distinct subsets of international law are increasingly intersecting. In this manner, arbitral tribunals contribute to the emergence of general principles of law requiring the protection of cultural heritage in times of peace and sustainable development.
Such principles reaffirm that states can legitimately govern and delimit private economic interests to protect cultural heritage. Protecting cultural heritage is a legitimate public policy objective. They also require striking a suitable balance between public and private interests. On the one hand, international cultural heritage law requires the protection of cultural heritage in respect of human rights and fundamental freedoms; on the other hand, international economic law protects the economic interests of foreign investors and traders to promote (sustainable) development. This jurisprudence can reverberate beyond the four corners of international investment law, influencing other international
By contrast, WTO panels and the AB have shown a separatist approach, privileging economic theory over legal thinking in adjudicating heritage-related disputes. While such disputes deal with areas at the crossroads between economics and culture, the legal dimension of these disputes cannot be neglected or dismissed in favor of purely economic considerations. Indeed, the hermeneutical pathways adopted by WTO panels and the AB diverge from those adopted by other international courts and tribunals, including arbitral tribunals. Only by ending its splendid isolation can the WTO contribute to the development of international law and promote just, peaceful, and prosperous relations among nations.
This analysis contributes to the current discourse on global governance in three ways. First, it highlights that international economic law has been increasingly humanized and that there is room for further humanization. When arbitrators juxtapose the interests of investors and cultural concerns, not only do they contextualize international investment law in the broader framework of international law, but they also highlight the human dimension of investment law and, albeit indirectly, of international cultural heritage law. In parallel, cultural heritage-related disputes highlight the need to let both international investment law and international cultural heritage law better reflect the interests and values of a wide range of actors, including Indigenous peoples, minorities, and local communities.
Exploring the human dimension of international economic law requires scholars not only to focus on macroeconomic notions of growth and economic theory, but also to consider the impact that international economic activities and their regulation have on the commonweal.
Second, this analysis strengthens the growing cognizance of the importance of effective protection and promotion of cultural heritage and diversity for sustainable development and peaceful relations among nations. In fact, balancing economic and cultural interests and values ‘requires that we no longer naturally exclude the latter from our conceptions of international economic law, and that we revalue the values inherent to international economic law.’12
Terence, Heauton Timorumenos, Act 1, scene 1, line 25, in Terence, The Comedies Peter Brown (trans.) (Oxford: OUP 2010)
Amanda Perry-Kessaris, ‘What Does It Mean to Take a Socio-legal Approach to International Economic Law?’ in Amanda Perry-Kessaris (ed.) Socio-Legal Approaches to International Economic Law (Abingdon: Routledge 2013) 3.
Id. 9.
See e.g. Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, ICSID Case No. ARB/07/26, Award, 8 December 2016.
Brigitte Stern, ‘The Future of International Investment Law: A Balance between the Protection of Investors and the States’ Capacity to Regulate’ in José E. Alvarez and Karl P. Sauvant (eds), The Evolving International Investment Regime (New York: OUP 2011) 192.
Marrakesh Agreement Establishing the World Trade Organization, Preamble.
Thomas Cottier, ‘Poverty, Redistribution, and International Trade Regulation’ in Krista Nadakavukaren Schefer (ed.), Poverty and the International Legal System (Cambridge: CUP 2013) 48.
VCLT, preamble.
United States—Standards for Reformulated and Conventional Gasoline, WTO Doc. WT/DS2/AB/R (1996), adopted 20 May 1996, at 17. See also Korea—Measures Affecting Government Procurement, WTO Doc. WT/DS163/R (2000), at para. 7.96 (establishing that ‘[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.’)
James Crawford, ‘International Protection of Foreign Direct Investment: Between Clinical Isolation and Systematic Integration’, in Rainer Hofmann and Christian Tams (eds), International Investment Law and General International Law: From Clinical Isolation to Systemic Integration? (Baden/Baden: Nomos 2011) 22.
Joost Pauwelyn, ‘WTO Compassion or Superiority Complex? What to Make of the WTO Waiver for Conflict Diamonds’ (2003) 24 Michigan JIL 1177–207.
Cecilia Flores Elizondo, ‘Reflexive International Economic Law – Balancing Economic and Social Goals in the Construction of Law’ in Amanda Perry-Kessaris (ed.), Socio-Legal Approaches to International Economic Law (Abingdon: Routledge 2013) 127–8.
VCLT, preamble.