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1 Introduction
International investment law and international trade law are often viewed as similar due to perceived substantive and procedural commonalities.2 From a substantive perspective, the case for drawing such an analogy is evident. Both regimes govern global economic integration, promote transnational business, and aim to foster development. Moreover, certain international trade treaties present an articulated regime that the investment treaties presuppose. For instance, the TRIMS Agreement, the TRIPS Agreement, and the GATS bring FDI into the trade fold.3
From a procedural perspective, arbitral tribunals and the WTO dispute settlement organs essentially share the same functions by settling international disputes in accordance with international economic law. WTO panels,
However, there are significant institutional differences between the two systems. While the WTO is an international organization administering a ‘cohesive multilateral system’, international investment agreements (IIA s) have a bilateral or regional scope and almost never set up an organization.4 The very concept of ‘international investment law is an academic systematization’ based on ‘a comparative analysis.’5
The respective dispute settlement mechanisms also differ. While only states can file claims before the WTO courts, foreign investors can pursue investor–state arbitration without any intervention from the home state. In theory, after bringing trade disputes before ad hoc panels, states can file appeals on matters of law before a permanent Appellate Body. For 25 years, the WTO Appellate Body has reviewed legal errors and ensured consistency in interpretation. In practice, in the past two years, the United States has blocked the appointment of new judges to the WTO’s Appellate Body due to complaints over judicial activism. Efforts to reform the dispute settlement mechanism have been unsuccessful so far. Conversely, appeals mechanisms have been included in IIA s only in the past decade. Yet, the EU is pursuing the establishment of a standing mechanism, an international investment court for the settlement of investment disputes.6 Annulment proceedings are limited to ascertaining grave breaches of due process.7 In case of breach, while the WTO DSM usually provides for re-establishing the previously existing state of affairs, arbitral tribunals generally award the payment of compensation.8 Furthermore, while remedies at the WTO only have prospective character, arbitral tribunals can award the full range of compensatory damages.
Finally, while economic analysis has always played an important role in international trade law and the settlement of international trade disputes, legal analysis has predominated in investment disputes. In international trade law, ‘economists and trade policy experts wrote and administered the General Agreement on Tariffs and Trade (GATT). The lawyers came along later’.9 Instead, international investment law ‘has always been the concern of
Comparing the jurisprudential patterns of international courts and tribunals differs from, yet complements, the existing literature in the field in several ways. Given the fact that culture-related disputes are adjudicated before international economic courts, it is important to examine this emerging jurisprudence through a cultural heritage law lens, as such cases tend to be scrutinized by experts from an economic law perspective only. These cases constitute a paradigmatic example of the interface between global governance and state regulatory autonomy and put international economic courts to the test. By dealing with cultural interests and values, international economic courts can deepen their understanding of their field, discern complexity, and acknowledge both their promises and pitfalls.12
There are several reasons for focusing on the jurisprudence of international economic courts. While most authors have focused on the interplay between cultural diversity and international trade law,13 or investment law,14
Both cultural heritage protection and the promotion of economic activities are important public interests that can contribute to economic growth and the common good (bien commun). In drawing comparisons, key questions will be addressed. Have international economic courts considered cultural concerns? What type of reasoning have they adopted? In addressing these questions the book illuminates convergences and/or divergences between international economic courts. It also helps ascertain the eventual emergence of general principles of international law requiring the protection of cultural heritage in times of peace and the appropriate balancing of public and private interests in such protection. While some research has been done with regard to the existence of general principles of law requiring the protection and preservation of cultural heritage in the event of armed conflict,16 the parallel question as to whether such principles exist in times of peace has received more limited scholarly attention.
Ascertaining the existence of general principles and/or customary international law requiring the protection of cultural heritage even in times of peace would be a significant outcome, because general principles and customary international law are binding on states irrespective of their adhesion to specific international law treaties.
This chapter proceeds as follows. First, it briefly considers the institutional convergences and divergences between international economic courts. Such courts form part of legal regimes designed to achieve various non-identical institutional goals. Second, the study investigates the convergences or divergences in the cultural heritage-related jurisprudence of international economic courts. This jurisprudence reveals that arbitrators are taking cultural elements
2 Converging Divergences between the Two Fields
Although foreign investments and international trade often converge in a globalized economy and are frequently depicted as ‘two sides of the same coin,’18 they remain governed by separate regimes.19 While international trade is now governed at the multilateral level by the WTO-covered agreements, foreign direct investment is regulated by more than 3,000 bilateral investment treaties. Therefore, a comprehensive examination of their convergences and divergences remains critical for assessing the nexus between trade, investment, and cultural heritage.
International trade law and international investment law converge on a number of grounds.20 From a substantive perspective, international investment law and international trade law share many commonalities. Both legal fields
Moreover, the regimes for trade and investment often intersect, as some aspects of foreign direct investment are governed by relevant WTO agreements. For example, the TRIMS Agreement prohibits trade-related investment measures, such as local content requirements, that are inconsistent with GATT Article III.24 The TRIPS Agreement also governs trade-related aspects of IP; thus, its coverage overlaps with investment treaties that include IP as a type of investment.25 In addition, GATS Modes 3 and Mode 4 address the establishment of service providers abroad. Furthermore, certain trade elements also surface in relevant investment arbitrations. For example, in Continental Casualty v. Argentina, a case arising in the wake of the 2001–2002 economic crisis, the arbitrators interpreted the US–Argentina BIT’s non-precluded measures clause by drawing from WTO jurisprudence.26 International investment law and international trade law certainly converge to a certain extent.27
From a sociological perspective, the background and expertise of the relevant epistemic communities constitute an informal communal element, which contributes to mutual convergence between international trade law and international investment law. International investment law and arbitration have long been dominated by lawyers.28 Meanwhile, although the GATT system
From a procedural perspective, investment treaty arbitration and the WTO courts certainly share the same function: settling international disputes in accordance with a specific set of international economic law and ensuring the proper administration of justice in this area. Both foreign investment and international trade are domains in which conflict is latent between market freedom and the free flow of capital on the one hand and the state’s regulatory autonomy to address public policy concerns on the other. International economic courts may be asked to strike a balance between economic and non-economic concerns.
Disputes that cross the boundary between the trade and investment regimes are increasing.32 In fact, some measures simultaneously affect international trade and the economic interests of investors and their investments.33 Therefore, government measures that are challenged before the WTO are increasingly also challenged before arbitral tribunals.34 While some contend that measures that are capable of review in both regimes tend to be either compliant or non-compliant with both regimes,35 inconsistent outcomes remain possible due to textual differences between the applicable laws.
International investment law and international trade law also present several notable differences. Although the current investment treaty network is multilateral in nature, due to the similarities among different treaties and dispute settlement mechanisms, it is still structurally based on a myriad of
At the procedural level, for now, both arbitral tribunals and WTO panels settle disputes without an appellate review. However, this has not always been the case, and the situation can change soon. For 25 years, WTO panel reports could be appealed before the Appellate Body which reviewed the relevant legal issues and thereby ensured consistency and predictability. As is known, the US has blocked the functioning of the Appellate Body, and the fate of this organ remains unpredictable.39 Moreover, several countries have included appeals mechanisms in their IIA s in the past decade, and the EU is pursuing the establishment of an international investment court for the settlement of investment disputes.40
Foreign investors can pursue investor–state arbitration directly without any intervention from the home state and can nominate one of the arbitrators. By contrast, access to the WTO courts is limited to members of the WTO. As noted by Alvarez, ‘Investor–state dispute settlement was designed to avoid politicized espousal and the gunboat diplomacy by powerful states that often accompanied it, much as the WTO was intended to displace bilateral trade leverage.’41 While the trade regime focuses on the macro-issues of liberalizing trade flows,
This is not to say that non-state actors do not play any substantive role at the WTO. On the one hand, specific industrial sectors have influenced the negotiation of covered agreements. For example, the pharmaceutical industry significantly influenced the negotiations of the TRIPS Agreement.43 On the other hand, many cases have been brought by states to protect the interests of given industrial sectors. However, at a procedural level, companies cannot enforce their rights against a foreign state at the WTO; rather, they ‘depend on their home state of nationality to take up a WTO case on their behalf.’44 The various factors which influence the choice of a WTO Member to bring a case against another member state include the magnitude of the impact of the measure in question, political considerations, and the lobbying efforts of the relevant industry sectors.45
The trade and investment regimes also offer different remedies to the aggrieved actors. In order to encourage trade liberalization and prevent protectionism, the WTO dispute settlement mechanism enables the authorization of trade retaliation by the injured state.46 However, this is possible only after a state fails to withdraw or modify an offending measure within a reasonable period.47 The investment regime, on the other hand, provides a monetary remedy to foreign investors whose investments have been harmed by government action. Therefore, while WTO remedies are only prospective and state-centric, arbitral tribunals can award damages to foreign investors.
In conclusion, despite their structural separation and differences, the borders between international trade law and international investment law are porous. There are several reasons for juxtaposing the two systems. First, international investment law and international trade law belong to the same branch of international law, namely international economic law. Second, the nature of the problems that both systems encounter is similar – that is,
3 Converging Divergences in the Jurisprudence of Cultural Heritage-Related International Economic Disputes
One may wonder whether the fact that cultural disputes are adjudicated before international economic courts determines a sort of institutional bias. Treaty provisions can be vague and a potentially wide variety of state regulations may interfere with economic interests. Therefore, potential tension exists when a state adopts cultural policies interfering with foreign investments or free trade, as such measures may be considered as violating substantive standards of treatment under investment treaties or WTO-covered agreements. Thus, the affected foreign investor may seek redress before arbitral tribunals or spur the home state to bring a case before the WTO.
More specifically, with regard to the WTO DSB, ‘it is quite uncontroversial that an adjudicatory system engaged in interpreting trade-liberalizing standards would tend to favor free trade.’48 According to some empirical studies, there is a consistently high rate of complainant success in WTO dispute resolution,49 and ‘the WTO panels and the WTO Appellate Body have interpreted the WTO agreements in a manner that consistently promotes the goal of expanding trade, often to the detriment of respondents’ negotiated and reserved regulatory competencies.’50 In particular, given the fact that WTO courts have settled
This study investigates whether the same institutional bias exists in investor–state arbitration. Some scholars believe that this mechanism prioritizes economic interests over other vital concerns.52 Certainly, given the architecture of the arbitral process, significant concerns arise in the context of cultural heritage disputes. While arbitration structurally constitutes a private model of adjudication, investment disputes present international public law aspects.53 Arbitral awards ultimately shape the relationship between the state on the one hand and private individuals on the other.54 Arbitrators determine matters such as the legality of governmental activity, the protection of investors’ rights, and the appropriate role of the state.55 Nonetheless, empirical studies based on statistical analysis have shown ‘no tendency [of] any group of arbitrators … to rule in favor of investors.’56 Professional reputation can be a key incentive for them to be impartial.57
While international economic courts have a similar function, namely settling international economic disputes, they have adopted diverging approaches to cultural heritage disputes. While arbitral tribunals, WTO panels, and the Appellate Body have all formally acknowledged that international economic law is an integral part of international law, in practice, their respective bodies of jurisprudence diverge to a significant extent. While cultural concerns have influenced, if not shaped, some significant awards, cultural concerns remain marginal topics at the WTO.
The real problem of the WTO lies in its vision of the world as merely a global economic system. In fact, cultural heritage-related disputes rest on more than
However, ‘market-driven economic wealth maximization is only one consideration among many.’59 The protection of cultural heritage is not an end in itself: not only is culture a key driver of wealth and sustainable development, but respect for and promotion of cultural entitlements can contribute to constructive dialogue among civilizations and the maintenance of peace. According to the United Nations, ‘without this dialogue taking place every day among all nations—within and between civilizations, cultures, and groups—no peace can be lasting and no prosperity can be secure.’60 Given the diversity of cultural, economic, and political positions among Member States, the most appropriate approach is to respect those differences.
4 Distinguishing Cultural Protection from Cultural Protectionism
The jurisprudence of international economic courts highlights ‘the difficulty of distinguishing legitimate cultural policy concerns from mercantilist impulses to protect local industry.’61 States have traditionally used a range of cultural policies affecting trade. Such measures have included ‘prohibitive tariffs, import bans, quantitative restrictions, discriminatory taxation, subsidies, domestic content requirements, regulatory prohibitions, licensing restrictions, and foreign investment constraints.’62 If states could shield any type of discriminatory policies in the name of culture, this would entail the end of trade liberalization and foreign investment protection. However, if states could never successfully defend legitimate cultural policies before international economic courts, in extreme cases, this could also cause the collapse of the international economic system, as some cultural values are of prime importance and may even relate to transnational public order and peremptory norms of international law.
Yet, adopting a cultural perspective, countries may be required to pursue legitimate cultural policies under international cultural heritage law, human rights law, and even peremptory norms of international law. For instance, forced cultural assimilation is prohibited under international law; and international law has evolved to include the protection of various aspects of cultural heritage, including not only tangible cultural heritage in the various forms of world heritage sites, underwater cultural heritage, artworks, and antiquities, but also immaterial heritage in the forms of cultural diversity, intangible, and Indigenous cultural heritage.63
The challenge of distinguishing the lawful protection of cultural heritage from unlawful protectionism is heightened by the fact that cultural goods and activities often have both economic and cultural value. On the one hand, if one adopts an overly broad understanding of culture, everything becomes worth of protection and thus trade liberalization and its benefits would come to an end. For instance, a country’s measures to protect its steel industry could be seen as necessary to safeguard a traditional way of life.64 The World Heritage List includes select industrial landscapes as sites of outstanding and universal value.65 However, listing such landscapes does not mean that a given economic activity should be continued despite changing times. Moreover, the reasons for listing a site on the World Heritage List are varied. In fact, the List also includes ‘difficult’ or ‘dissonant’ heritage, that is, sites that convey history that hurts and involves a contrast between past and present value systems.66 Difficult heritage sites are ‘place[s] of memory for the whole of humankind;’ they remind ‘dark chapter[s] in the history of
On the other hand, if one adopts an overly narrow view of cultural heritage, then economic globalization risks eclipsing cultural diversity, mutual respect, and dialogue among civilizations. For instance, agricultural products are traded like any other products.68 Countries with a comparative advantage in producing a certain type of food can trade for other foods that are too expensive to produce domestically. Yet, the current food crisis suggests that applying the theory of comparative advantage to agriculture may be too simplistic. This theory will certainly require some adjustments to be viable in this sector in order to ensure access to food in times of geopolitical crisis and climate change.69
In this regard, several WTO members call for recognizing the multifunctionality of agriculture,70 highlighting the existence of non-trade values linked to this human activity.71 Multifunctionality refers to ‘the idea that agriculture has many functions in addition to producing food.’72 In fact, agricultural policies can foster the production and trade of agricultural products and contribute to environmental protection, cultural landscape preservation, rural employment, and food security. In particular, agriculture also protects cultural values and select agricultural products can deserve special treatment on that basis.73
For instance, in Asia, ‘rice is more than just a food… it is a cereal that has become the cornerstone of [the local] food system’, and informs cultures, rituals, and ceremonies.74 Rituals associated with the plantation of rice have
In order to detect whether a given product is cultural, a quantitative assessment may not suffice. As Voon explains, ‘the more commercial a given product or service, the more tempting it may be to conclude that cultural elements are secondary.’78 Such market-based assessment relies on economic analysis. Nonetheless, cultural products often have both cultural and economic values. Therefore, in order to discern lawful cultural policies from unlawful protectionist measures, a qualitative assessment is also needed. Such a qualitative assessment is based on legal analysis and centers on the emergence of general principles of law requiring the protection of cultural heritage in times of war and peace.
As Judge Tanaka once stated, ‘[t]he historical development of law demonstrates the continual process of the cultural enrichment of the legal order by taking into consideration values or interests which had previously been excluded from the sphere of law.’79 Nowadays, general principles of law have emerged requiring the protection of cultural heritage. Such principles appear in almost universally ratified UNESCO Conventions and human rights instruments.
Like other international courts and tribunals, international economic courts are organs of justice and can be viewed as guardians of legality.80 They have duties not only to the parties to given disputes, but also to the international
Arbitral tribunals have distinguished cultural sites of outstanding and universal value from other sites on the basis of the World Heritage Convention. More generally, they have considered other international law instruments in adjudicating investment disputes on the basis of Article 31(3)(c) of the VCLT.82 In comparison, WTO courts have been more likely to reject or not deal with Article 31(3)(c).83 There is no reason why WTO courts could not rely on such a provision to distinguish lawful cultural protection from unlawful protectionism. Instead, despite formally acknowledging that WTO should not be read in splendid isolation from general international law,84 usually WTO courts fail to consider other international law in practice. In fact, they use economic theory to ascertain indirect discrimination and adopt a quantitative type of analysis to assess other violations of WTO. They postpone their more legalistic analysis to a later phase, when they consider whether a general exception could justify a given measure. This approach enables them to mention the appropriateness of balancing opposing interests.85 In practice, however, the invocation of general exceptions tends to inevitably fail because cultural arguments fall between the Scylla of the necessity test (in fact, less trade-restrictive measures can always be envisaged) and the Charybdis of the chapeau (further narrowing down the applicability of general exceptions).
Economic analysis cannot and should not provide the overarching interpretative framework for international economic law. Rather, a holistic approach
5 Mainstreaming Cultural Heritage in International Economic Law
Is it possible to safeguard cultural heritage from within the citadel of international economic law?91 International economic law emphasizes economic freedom from governmental intervention.92 For some scholars, though, international economic courts can balance different interests and values.93 The lack of a cultural exception within international economic law does not mean that foreign direct investments and trade do not interact with cultural governance.
Other scholars, however, warn against a merger and acquisition of non-economic values by international economic law arguing that the WTO, the World Bank, and cultural heritage bodies have different functions and that each international organization should remain within its sphere, rely on its
In theory, trade and culture can be mutually supportive. International trade and foreign investment are based upon human interaction and can foster dialogue, mutual respect, and understanding between civilizations.95 As such, international economic law ‘is more than a mere technical regime’ dealing with trade and investment issues;96 rather, it has significant political, legal, and cultural implications. For example, the Bretton Woods conference aimed to reinforce economic cooperation as a means of preventing war. In addition, the legalization of the field has attempted to overcome power-based economic relations. The objectives of the WTO covered agreements and IIA s generally include sustainable development.97 The achievement of these objectives does not exclude the safeguarding of cultural heritage.
International economic law and international cultural heritage law are characterized by different aims, objectives, and procedural features. While international economic law aims to promote trade liberalization, investment protection, and sustainable development, international cultural heritage law aims at safeguarding cultural heritage. The pursuit of different objectives – economic/utilitarian interests on the one hand, cultural interests on the other – discourages the formation of broad analogies between international economic law and international cultural heritage law.
While international economic law obligations are not owed to all (erga omnes), the question remains of whether they are owed to all the members states (erga omnes partes). In theory, ‘breach of WTO treaty can be limited to one single party’.98 However, in practice, all WTO Members have an interest
In contrast, international cultural heritage law includes jus cogens, that is, peremptory norms of a non-derogable nature, as well as erga omnes and erga omnes partes obligations. The violation of a customary norm requiring the protection of cultural heritage by a state inherently affects the legal interest of the international community as a whole (erga omnes obligation). Moreover, the violation of a treaty norm of international cultural heritage law by a state party to a UNESCO convention affects the legal interest of any other state party to that treaty (erga omnes partes obligation). Given the almost universal ratifications of some UNESCO conventions, the safeguarding of cultural heritage can be considered a common concern of humankind, ‘an important shared problem and shared responsibility, and for an issue which reaches beyond the bounds of a single community and state as a subject of international law.’101
The disparity between international economic law and international cultural heritage law is particularly evident in the manner in which disputes are settled and the enforcement imbalance. International economic law is characterized by well-developed and sophisticated dispute settlement mechanisms. The creation of the WTO Dispute Settlement Body and investor–state arbitration constituted a major shift away from the political-consensus-based dispute settlement system of the 1947 GATT and power-based gunboat diplomacy and toward a rule-based architecture designed to strengthen peaceful and prosperous relations among nations.102
Meanwhile, international cultural heritage law is characterized by various compliance and dispute settlement mechanisms, as well as under-enforcement of its obligations. Only a few UNESCO Conventions mention dispute settlement procedures. Rather, the vast majority of UNESCO Conventions rely solely on some sort of reporting and/or monitoring system to compel compliance.
As a matter of policy, structural arguments of institutional separation have given way to a growing awareness of the interconnectedness of legal regimes. The so-called ‘linkage issue’, that is, the interplay between trade and cultural values, can promote institutional development and progress. It can offer both international economic law and international cultural heritage law an opportunity for self-reflection on whether they need to evolve and adapt to new needs and circumstances.
As a matter of law, the mainstreaming of select cultural norms into international economic law may be not only possible, but also required under international law. There are several textual anchors enabling international economic courts to interpret international economic law in conformity with international law, thus enabling select cultural concerns to enter the system through several ports of entry.105
First, customary norms of treaty interpretation require international economic courts to consider other international law instruments.106 Second, UNESCO Conventions might reflect global citizens’ preferences in relation to certain goods and services, thus differentiating them from other goods and services. Third, UNESCO Conventions might influence the interpretation of the ordinary meaning of ‘public morals’ and ‘natural treasures’ under Article XX(a) and (f) respectively. Inevitably, the interpretation of such terms is likely to evolve over time. Fourth, GATT Article XX(d) provides one possible textual anchor for raising obligations under international cultural heritage law as a defense against a claim of WTO violation. This exception covers measures that are ‘necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this agreement.’107 In Mexico—Soft Drinks,
In conclusion, while arbitral tribunals are more open to international cultural heritage law than WTO courts, there is scope for increasing the dialogue between international economic law and other international law. Like arbitral tribunals, WTO courts do have a range of textual hooks at their disposal for taking international cultural heritage law into account. International economic courts do not belong to a self-contained regime; accordingly, they could integrate cultural perspectives into their working methods using the mentioned defragmenting techniques to respect the cultural diversity of the family of nations.
6 Toward Good Cultural Governance?
The review by international economic courts of domestic regulations could improve good cultural governance and the transparent pursuit of legitimate cultural policies.109 Cultural governance refers to the need to regulate human activities and their implications for cultural heritage and to protect the cultural interests of present and future generations. It entails several legislative, executive, and administrative functions.110 Good cultural governance refers to the exercise of state authority according to due process and the rule of law, which includes respect for human rights and fundamental freedoms.111
The growing importance of international economic law and international economic courts may compel governments to consider the impact of cultural policies on foreign investors and traders before enacting such measures, to avoid potential claims and subsequent liability.112 If foreign investment is expropriated, whether directly or indirectly, compensation must be
While each state retains the right to regulate within its territory, international economic law poses vertical constraints on this right, ‘introducing global interests into the decision-making processes of domestic authorities.’115 Adherence to these international regimes ‘add[s] a circuit of external accountability, forcing domestic authorities to consider the interests of the wider global constituency affected by their decisions.’116 At the same time, the internal accountability of state authorities to their domestic constituencies does not cease to exist.117
Like other international adjudicative bodies, international economic courts are not to undertake a de novo review of the evidence once brought before the national authorities, merely repeating the fact-finding conducted by the latter.118 It is not appropriate for international economic courts to ‘second-guess the correctness of the … decision-making of highly specialized national regulatory agencies.’119 For instance, in the Glamis Gold case, the Arbitral Tribunal accorded deference to the municipal measures aimed at protecting Indigenous cultural heritage.120 It recognized that ‘[i]t is not the role of this Tribunal, or any international tribunal, to supplant its own judgment of underlying factual material and support for that of a qualified domestic agency’ and that ‘governments must compromise between the interests of competing parties.’121
On the other hand, international economic courts examine given national measures to ascertain their compliance with that state’s international
Therefore, it will be important for the states to show that their regulations aim to achieve legitimate public goals and that they follow due process of law. As one Arbitral Tribunal held, the term ‘public interest’ ‘requires some genuine interest of the public. If mere reference to “public interest” can magically [create] such interest … and therefore satisfy this requirement, then this requirement would be rendered meaningless since the Tribunal can imagine no situation where this requirement would not have been met.’126
That being said, the review of cultural heritage-related disputes by international economic courts can also jeopardize the protection of cultural heritage.127 In the end, the protection of cultural heritage is not listed among the objectives of investment treaties or WTO-covered agreements. At best, the protection of cultural heritage may be listed among the exceptions in the relevant economic treaties and, at worst, it may not be mentioned at all. Arbitrators, panels, and the Appellate Body have a limited mandate and may lack
Certainly, by taking elements of cultural heritage law into account, this jurisprudence and emerging state practice can contribute to the emergence of general principles of law requiring the protection of cultural heritage. This outcome would be notable because states are bound by general principles of law, irrespective of their consent. This would facilitate the consideration of cultural concerns in future adjudication of analogous disputes.
7 The Emergence of General Principles of Law Requiring the Protection of Cultural Heritage
Cultural heritage governance can affect, and has affected, the economic interests of several stakeholders, including traders and foreign investors. Therefore, trading states and foreign investors have brought a number of heritage-related claims before the WTO dispute settlement mechanism and arbitral tribunals respectively. This section addresses the question as to whether international economic courts contribute to the coalescence of general principles of law requiring the protection of cultural heritage.
Defined as ‘a core of legal ideas which are common to all legal systems’,130 general principles of law are a primary source of international law.131 The Statute of the ICJ empowers the court, if the occasion should arise, to apply the ‘general principles of law recognized by civilized nations’.132 Although the Statute
Often considered as a dormant source of international law, general principles of law revive and govern a certain issue, if such issue is not regulated by treaty law and customary law. Therefore, general principles of law constitute a crucial element of international law, helping adjudicators to settle a given dispute, filling in the gaps in the treaty and customary law, and allowing international law to evolve and respond to new challenges.134 General principles of law have a flexible, subsidiary, and dynamic nature filling gaps in legal norms and contributing to the development of international law. In addition, general principles can be a source of higher law, that is, jus cogens.135
Not only do general principles of law fill any gaps left open by treaties and customs, but they can also contribute to the construction of international law as a unitary legal system. As Cassese put it, general principles ‘constitute … the potent cement that binds together the various and often disparate cogs and wheels of the normative framework of the international community’.136 Some authors contend that ‘it is largely due to general principles that international law can be defined as a system’.137 Some principles such as pacta sunt servanda provide the foundations of the international legal system,138 expressing a belief in a universal ‘common heritage’ of international law,139 and ‘form[ing] the irreducible essence of all legal systems’.140 Waldron suggests that principles expressing ‘a sort of consensus among judges, jurists, and lawmakers around the world’ constitute a common law of mankind.141 International courts and tribunals use general principles of law to reinforce their legal arguments.
Given the fact that there are no apposite cultural heritage courts, the jurisprudence of international economic courts can and does have an impact on cultural governance, and can bridge the gap between different legal regimes. For instance, in some cases, arbitral awards have settled disputes concerning investments near world heritage sites by referring to the World Heritage Convention.147 In other cases, arbitrators have resolved disputes relating to investments in areas valued as sacred by Indigenous peoples,148 or in sectors related to Indigenous cultural heritage.149 This jurisprudence contains some elements
Detecting the emergence of a general principle of international law requiring the protection of cultural heritage in times of peace, and the equilibrate balancing of private and public interests in such protection is a theoretical endeavor with significant practical outcomes. While some research has been done on the question of whether the principle requiring the protection of cultural heritage exists in times of war,150 the parallel question of whether such principle exists in times of peace has not received much scholarly attention. Ascertaining the existence of general principles and/or customary international law is a major achievement since general principles and customary international law are binding on states, irrespective of their adhesion to specific international law treaties, and this facilitates the consideration of cultural heritage in the adjudication of transnational disputes.
The examination of a discrete number of cultural heritage-related disputes reveals the coalescence of general principles of law relating to the safeguarding of cultural heritage. Such principles have both procedural and substantive dimensions. At a procedural level, general principles of international law relating to the protection of cultural heritage include procedural principles such as the duty for states to comply with the rule of law, due process, and good governance values including transparency, participation, and accountability.151 For instance, the principle of due process requires that foreign investors should not be exposed to prolonged uncertainty with regard to the legal status of the property claimed by the state, especially if such property is of historical and cultural significance.152 With regard to Indigenous cultural heritage, such procedural principles include the duty to obtain the free, prior, and informed consent of Indigenous Peoples and to guarantee them benefit-sharing for projects potentially affecting their heritage.153 States must
At the substantive level, states must protect cultural heritage whether in time of war or peace, as restated in several treaties dealing with the conservation of cultural heritage.157 The protection of cultural heritage is indispensable to allow individuals to enjoy their cultural rights.158 According to the UN Special Rapporteur in the field of cultural rights, the prohibition of acts of deliberate destruction of cultural heritage with major value for humanity, whether in times of war or peace, has now become part of customary international law.159
Thus, the protection of cultural heritage is a legitimate aim that states may pursue when interfering with private rights.160 In particular, the protection of a country’s cultural heritage can justify the expropriation by the state of a building or area listed as cultural property. The legitimacy of cultural policies can
8 Conclusions
Both cultural heritage protection and the promotion of economic activities are important public interests that can contribute to economic growth and the commonweal. The protection of cultural heritage can be thought of as a public interest of the state, but also as the common interest of humankind, transcending borders and stressing the common bonds uniting the
The clash between the protection of cultural heritage and the promotion of economic activities epitomizes the tension between state regulatory autonomy on the one hand, and international economic law on the other hand. International disputes relating to the interplay between cultural heritage protection and economic integration are characterized by the need to balance the legitimate interests of a state to adopt cultural policies on the one hand, and the legitimate interests of investors, traders, and property owners to protect their economic interests on the other. Given the importance of cultural policies that are at the heart of state sovereignty, cultural heritage-related cases tend to be high-profile and reach a broader audience than is usually the case for other disputes presenting economic character.
International economic law has developed limited institutional machinery for the protection of cultural heritage. At the institutional level, there seems to be ‘a strict separation of powers between the competent international organizations’.167 There is no in-built requirement for expert advice or consultation with other international bodies such as UNESCO. The relationship between international economic law and other branches of international law, including international cultural heritage law, should be addressed in terms of coordination between interrelated systems of public international law. Both WTO law and international investment law are public international law sub-systems, endowed with relative autonomy, but still open to the influence of international law, including international cultural heritage law. Public order or—albeit less frequently—cultural exceptions are introduced in the texts of international economic agreements to preserve state regulatory autonomy in crucial areas. Nonetheless, given the open-ended wording of key provisions, often it is up to the adjudicators to decide the extent of these exceptions and/or consider relevant cultural policies without detailed guidance from the text of the treaties.
Like ‘castles of crossed destinies’,168 international economic courts have attracted a number of ‘culture and trade’ and ‘culture and investment’ related disputes. In these disputes brought before the WTO and arbitral tribunals
International economic courts are of limited jurisdiction and cannot adjudicate on the eventual violation of international cultural heritage law. This does not mean, however, that they cannot consider cultural concerns in the adjudication of economic disputes, or that cases adjudicated by these courts cannot have broad and significant implications for the protection of cultural heritage. International economic law is not a self-contained regime. Therefore, it is of crucial importance to ascertain whether, and if so how, cultural heritage has been taken into account by these courts and tribunals; to verify whether their approaches have converged or diverged to any extent.
There are some convergences and a few divergences in the way international economic courts have adjudicated analogous cases. On the one hand, international economic courts have interpreted their jurisdiction as not accepting claims brought under other international law. Arbitral tribunals, WTO panels, and the AB do not decide whether cultural heritage is protected or not. Rather, they ascertain different matters. In particular, arbitral tribunals assess whether there is a breach of the relevant investment treaty provisions. If there is expropriation, compensation must be paid, irrespective of the public policy objective pursued by the state.169 Analogously, the prime task of the WTO panels and the Appellate Body is ‘to preserve the rights and obligations of members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law’.170 Therefore, arbitral tribunals, WTO panels, and the AB cannot address the
On the other hand, international economic courts have also admitted that customary canons of treaty interpretation require systematic interpretation.172 Neither the WTO nor international investment governance are monocultures;173 rather, they deal with a variety of issues and sectors. Yet, while arbitral tribunals have tended to interpret and apply international investment law in line with general international law, WTO courts have privileged the use of economic theory in their judicial philosophy. The panel and the Appellate Body reports confirm previous jurisprudence on the interpretation of the WTO covered agreements. Very rarely have exceptions been successfully invoked by defendants in the adjudication of international trade disputes.174 While arbitral tribunals have shown more deference to the cultural policies of the host state, WTO courts have not recognized trade and other societal values as equals, adopting a liberal trade bias to interpret the WTO agreements. Nonetheless, ‘excessive compartmentalization impedes coherence; it emphasizes the particular over the universal; it may defeat important policy objectives of the international community by leading to competition and clashes between regimes.’175
Finally, the examination of a discrete number of cultural heritage-related disputes reveals the coalescence of general principles of law relating to the safeguarding of cultural heritage. Such principles have both procedural and substantive dimensions. On a procedural level, general principles of international law relating to the protection of cultural heritage include procedural principles such as the duty for states to comply with the rule of law, due process, and good governance values including transparency, participation, and accountability. For instance, the principle of due process requires that foreign investors should not be exposed to prolonged uncertainty with regard to the legal status of the property claimed by the state, especially if such property is of historical and cultural significance. With regard to Indigenous cultural
On a substantive level, states must safeguard cultural heritage in times of war and peace. The preservation of cultural heritage is indispensable to allow individuals to enjoy their cultural rights. Thus, the protection of cultural heritage is a legitimate aim that can justify the state’s seizure of private property. The legitimacy of cultural objectives can be presumed when such policies honor international obligations to UNESCO. The safeguarding of cultural heritage requires that a fair balance be struck between public and private interests. If there is expropriation, compensation must be paid. However, private actors have no blanket protection against any cultural policy. In fact, they should expect project rejection if their investment is within or near cultural heritage sites.176
In conclusion, cultural heritage-related economic disputes determine a sort of ‘entropy’, a move from order to disorder in the international legal order.177 In physics and chemistry, the concept of ‘entropy’ indicates a dynamic transition between different states, the tension between the regular and irregular, and a shift from order to disorder, from isolated items to a mix of different elements. The cultural heritage-related disputes brought before international economic courts determine a sort of perfect storm that can spur self-reflection, evolution, and even reform of the system. In these disputes, the content of international cultural heritage law and international economic law intermingle; these disputes constitute an unexpected change in the types of disputes that international economic courts generally deal with resulting in an unstable situation from which the courts can explore a wide variety of options.
Johann Peter Eckerman, Conversations of Goethe with Eckermann and Soret, John Oxenford (trans.) (London: Smith, Elder & Co. 1850) 266–67
Valentina Vadi, Analogies in International Investment Law and Arbitration (Cambridge: CUP 2016).
Agreement on Trade-Related Investment Measures (TRIMS Agreement), 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1868 UNTS 186; Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 UNTS 299; General Agreement on Trade in Services (GATS), 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, 1869 UNTS 183.
Sergio Puig, ‘The Merging of International Trade and Investment Law’ (2015) 33 Berkeley JIL 1–59, 6–7.
Id. 7.
Guillaume Croisant, ‘Multilateral Investment Court’, Jus Mundi, 17 June 2022.
Puig, ‘The Merging of International Trade and Investment Law’, 9.
Id. 8–9.
Donald McRae, ‘The World Trade Organization and International Investment Law: Converging Systems—Can the Case for Convergence be Made?’ (2014) 9 Jerusalem Review of Legal Studies 13–23, 16.
McRae, ‘The World Trade Organization and International Investment Law’, 16.
Id.
Compare with Edith Stein, L’Empatia [Zum Problem der Einfühlung (Halle: Buchdruckerei des Waisenhauses 1917)] Michele Nicoletti (ed.) (Milan: Franco Angeli 1986) 101.
See e.g. Ben Garner, The Politics of Cultural Development—Trade, Cultural Policy, and the UNESCO Convention on Cultural Diversity (Abingdon: Routledge 2016); Hélène Ruiz Fabri, ‘Cultural Diversity and International Trade Law: the UNESCO Convention on Cultural Diversity’ in Adriana Di Stefano and Rosario Sapienza (eds), La Tutela dei Diritti Umani e il Diritto Internazionale (Naples: Editoriale Scientifica 2012) 437–451; Tania Voon, Cultural Products and the World Trade Organization (Cambridge: CUP 2011); Lilian Richieri Hanania, Diversité Culturelle et Droit International du Commerce (Paris: CERIC 2009); Rostam J. Neuwirth, The Cultural Industries in International Trade Law: Insights from the NAFTA, the WTO, and the EU (Hamburg: Dr. Kovač 2006).
Valentina Vadi, Cultural Heritage in International Investment Law and Arbitration (Cambridge: CUP 2014); Federico Lenzerini, ‘Property Protection and Protection of Cultural Heritage’, in Stephan Schill (ed.), International Investment Law and Comparative Public Law (Oxford: OUP 2010).
But see Valentina Vadi and Bruno de Witte (eds), Culture in International Economic Law (London: Routledge 2015).
UNESCO, Records of the General Conference at its Twenty-seventh Session, UNESCO Doc. 27/C100 (1993), para. 3(b) (stating that ‘the fundamental principles to protect and preserve cultural property in the event of armed conflict could be considered as part of international customary law’); Marina Lostal, International Cultural Heritage Law in Armed Conflict—Case-Studies of Syria, Libya, Mali, the Invasion of Iraq, and the Buddhas of Bamiyan (Oxford: OUP 2017); Roger O’Keefe, The Protection of Cultural Property in Armed Conflict (Cambridge: CUP 2011); Nout van Woudenberg and Liesbeth Lijnzaad (eds), Protecting Cultural Property in Armed Conflict (Leiden/Boston: Nijhoff 2010).
See also José Alvarez, ‘Epilogue: Convergence is a Many-Splendored Thing’, in Szilárd Gáspár-Szilágyi, Daniel Behn, and Malcom Langford (eds), Adjudicating Trade and Investment Disputes: Convergence or Divergence? (Cambridge: CUP 2020) 311 (noting that arbitrators are ‘far more likely to consider other international legal rules … in the course of adjudicating investment disputes.’).
Sergio Puig, ‘The Merging of International Trade and Investment Law’ (2015) 33 Berkeley Journal of International Law 1–59, 1.
Steve Charnovitz, ‘What is International Economic Law?’ (2011) 14 JIEL 1, 3–9.
Roger P Alford, ‘The Convergence of International Trade and Investment Arbitration’ (2014) 12 Santa Clara Journal of International Law 35.
Vadi, Analogies in International Investment Law and Arbitration, 209.
Nicholas DiMascio and Joost Pauwelyn, ‘Non-Discrimination in Trade and Investment Treaties: Worlds Apart or Two Sides of the Same Coin?’ (2008) 102 AJIL 48–89, 88.
Donald McRae, ‘The World Trade Organization and International Investment Law: Converging Systems—Can the Case for Convergence be Made?’ (2014) 9 Jerusalem Review of Legal Studies 13–23, 14.
Agreement on Trade Related Measures Agreement Establishing the World Trade Organization, Annex 1A, adopted 15 April 1994, in force 1 January 1995, 1868 UNTS 186 (TRIMS Agreement) Article 2(1).
Valentina Vadi, ‘Towards a New Dialectics—Pharmaceutical Patents, Public Health, and Foreign Direct Investments’ (2015) 5 New York Journal of Intellectual Property and Entertainment Law 1–83.
Continental Casualty Company v. Argentine Republic, ICSID Case No ARB/03/9, Award, 5 September 2008.
See generally Jürgen Kurtz, The World Trade Organization and International Investment Law: Converging Systems (Cambridge: CUP 2016).
On the judicialization of investment arbitration see e.g. Alex Stone Sweet and Florian Grisel, ‘The Evolution of International Arbitration: Delegation, Judicialization, Governance’ in Walter Mattli and Thomas Dietz (eds), International Arbitration and Global Governance: Contending Theories and Evidence (Oxford: OUP 2014) 22, 23.
Joseph H H Weiler, ‘The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement’ (2000) Harvard Jean Monnet Working Paper 9/00, 2.
José Fontoura Costa, ‘Comparing WTO Panelists and ICSID Arbitrators: the Creation of International Legal Fields’ (2011) Oñati Socio-Legal Series Working Paper 1/4, 16.
Id. 20.
Vadi, Analogies in International Investment Law and Arbitration, 209.
Arwel Davies, ‘Scoping the Boundary Between the Trade Law and Investment Law Regimes: When Does a Measure Relate to Investment?’ (2012) 15 JIEL 793–822.
Id. 794.
Nicholas F Diebold, ‘Standards of Non-Discrimination in International Economic Law’ (2011) 60 ICLQ 831, 844–45.
See generally Stephan W Schill, The Multilateralization of International Investment Law (Cambridge: CUP 2009).
European Commission, Directorate General for Trade, Multilateral Investment Court Project, available at https://policy.trade.ec.europa.eu/enforcement-and-protection/multilateral-investment-court-project_en (accessed on 6 July 2022)(explaining that ‘For the EU, the Multilateral Investment Court would replace the bilateral investment court systems included in EU trade and investment agreements. Both the EU–Canada Comprehensive Economic Trade Agreement (CETA) and the EU–Vietnam Free Trade Agreement foresee setting up a permanent multilateral mechanism and contain a reference to it. The EU now includes similar provisions in all of its negotiations involving investment.’)
Claus-Dieter Ehlermann, ‘Six Years on the Bench of the World Trade Court – Some Personal Experiences as Member of the Appellate Body of the WTO’ (2002) 36 JWT 605.
Peter Van Den Bossche, ‘Is There a Future for the WTO Appellate Body and WTO Dispute Settlement?’ World Trade Institute Working Paper No. 01/2022 (2022) 1–28.
Guillaume Croisant, ‘Multilateral Investment Court’, Jus Mundi, 17 June 2022.
José E Alvarez, ‘Beware: Boundary Crossings’ (2016) 17 JWIT 171, 217.
Di Mascio and Pauwelyn, ‘Non-Discrimination in Trade and Investment Treaties’, 53–56.
See generally Susan Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights (Cambridge: CUP 2003).
Daniel Sarooshi, ‘Investment Treaty Arbitration and the World Trade Organization: What Role for Systemic Values in the Resolution of International Economic Disputes?’ (2014) 49 Texas International Law Journal 445, 462.
Jürgen Kurtz, ‘The Use and Abuse of WTO Law in Investor–State Arbitration: Competition and Its Discontents’ (2009) 20 EJIL 749, 757.
DSU Article 22.
Id. Articles 19–21.
Joel Trachtman ‘The Domain of WTO Dispute Resolution’ (1999) 40 Harvard International Law Journal 333–374.
John Maton and Carolyn Maton, ‘Independence under Fire: Extra Legal Pressures and Coalition Building in WTO Dispute Settlement’ (2007) 10 JIEL 317–334.
Juscelino Colares, ‘A Theory of WTO Adjudication: From Empirical Analysis to Biased Rule Development’ (2009) 42 Vanderbilt Journal of Transnational Law 383–439 at 388.
Colares, ‘A Theory of WTO Adjudication’, 387.
Robin Broad, ‘Corporate Bias in the World Bank Group’s International Centre for Settlement of Investment Disputes—A Case Study of a Global Mining Corporation Suing El Salvador’ (2015) 36 University of Pennsylvania JIL 854–874.
Gus Van Harten, ‘The Public-Private Distinction in the International Arbitration of Individual Claims against the State’ (2007) 56 ICLQ 371–393, 372.
Gus Van Harten, Investment Treaty Arbitration and Public Law (Oxford: OUP 2007) 70.
M. Sornarajah, ‘The Clash of Globalizations and the International Law on Foreign Investment’ (2003) 10 Canadian Foreign Policy 1–20.
Daphna Kapeliuk, ‘The Repeat Appointment Factor—Exploring Decision Patterns of Elite Investment Arbitrators’ (2010) 96 Cornell LR 47–90, at 90.
Id. at 90.
Broude, ‘Taking Trade and Culture Seriously’, 637.
Vincent Chiappetta, ‘The Desirability of Agreeing to Disagree: The WTO, TRIPS, International IPR Exhaustion and a Few Other Things’ (2000) 21 Michigan JIL 333–392, 383.
United Nations General Assembly, Dialogue Among Civilizations—Report of the Secretary General, 2 November 2001, A/56/523, p. 3.
Voon, ‘Geographical Indications, Culture, and the WTO’, 301.
Broude, ‘Taking Trade and Culture Seriously’, 637.
See Chapter 1 above.
Voon, ‘Geographical Indications, Culture, and the WTO’, 304 (reporting this argument).
See, ex multis, World Heritage Convention, Nord-Pas de Calais Mining Basin (France); Erzgebirge/Krušnohoří Mining Region (Germany/Czechia); Iwami Ginzan Silver Mine and its Cultural Landscape (Japan); Røros Mining Town and the Circumference (Norway); Rosia Montana Mining Landscape (Romania); Blaenevon Industrial Landscape and Cornwall and West Devon Mining Landscape (United Kingdom); Fray Bentos Industrial Landscape (Uruguay).
Sharon Macdonald, Difficult Heritage: Negotiating the Nazi Past in Nuremberg and Beyond (Abingdon: Routledge 2009).
World Heritage Convention, Auschwitz Birkenau German Nazi Concentration and Extermination Camp (1940–1945)(Poland).
See Chapter 5, Section 9 above.
On the current food crisis, see e.g. Carlo Cambi, ‘La Battaglia del Grano’, Panorama, 20 April 2022.
WTO, Trade Policy Review Body, Trade Policy Review of Switzerland and Liechtenstein: Minutes of Meeting held on 15 and 17 December 2004, WT/TPR/M/141, 16 Ferbuary 2005, para. 40; WTO, Trade Policy Review Body, Trade Policy Review of the Republic of Korea: Minutes of Meeting held on 15 and 17 September 2004, WT/TPR/M/137, 19 November 2004, para. 88.
Clive Potter and Jonathan Burney, ‘Agricultural Multifunctionality in the WTO—Legitimate Non-Trade Concern or Disguised Protectionism?’ (2002) 18 Journal of Rural Studies 35–47.
WTO, ‘Multifunctionality’, Glossary term, <https://www.wto.org/english/thewto_e/glossary_e/multifunctionality_e.htm>.
Voon, ‘Geographical Indications, Culture, and the WTO’, 304 (reporting this argument).
Subbiah, ‘Reaping What They Sow’, 534–5.
UNESCO, Mibu no Hana Taue, ritual of transplanting rice in Mibu, Hiroshima (describing such ceremony as ‘a Japanese agricultural ritual carried out … in Kitahiroshima Town, Hiroshima Prefecture, to assure an abundant rice harvest by celebrating the rice deity. On the first Sunday of June, after the actual rice transplanting has ended, the ritual enacts the stages of [rice] planting and transplanting.’)
See e.g. Cultural Landscape of Honghe Hani Rice Terraces (China); Cultural Landscape of Bali Province: the Subak System as a Manifestation of the Tri Hita Karana Philosophy (Indonesia); Rice Terraces of the Philippine Cordilleras (Philippines).
See e.g. Coffee Cultural Landscape of Colombia (Colombia); Archaeological Landscape of the First Coffee Plantations in the South-East of Cuba (Cuba).
Voon, ‘Geographical Indications, Culture, and the WTO’, 304.
ICJ, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa) (Second Phase) Judgment, 18 July 1966, (1966) 6 ICJ Reports 252 (Judge Tanaka, Dissenting Opinion).
Compare with Stephan Wilske and Martin Raible, ‘The Arbitrator as Guardian of International Public Policy?’ in Catherine Rogers and Roger Alford (eds), The Future of Investment Arbitration (Oxford: OUP 2009) 249–272, 262.
VCLT preamble.
Tulip Real Estate v. Turkey, ICSID Case No. ARB/11/28, Decision on Annullment, 30 December 2015, paras 86–92; Urbaser SA v. Argentine Republic, ICSID Case No. ARB/07/26, Award, 8 December 2016, paras 1200–1210.
See Nicola Strain, Jurisdiction and Applicable Law in Investor-State and WTO Dispute Settlement, Doctoral Thesis, University of Oslo, Faculty of Law (Oslo: University of Oslo 2022) 164.
Peru—Additional Duty on Imports of Certain Agricultural Products, Report of the Panel, 27 November 2014, WT/DS457/R, para. 6.67; United States—Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body, 29 April 1996, WT/DS2/AB/R 17.
Tania Voon, ‘UNESCO and the WTO: A Clash of Cultures?’ (2006) 55 ICLQ 635–651, 648 (reporting the ‘AB’s own description of the WTO agreements as containing carefully negotiated language, reflecting, variously, a carefully drawn balance of rights and obligations of Members’.).
See Chapter 7 below.
VCLT Article 31(3)(c).
Chiappetta, ‘The Desirability of Agreeing to Disagree’, 391.
Id. 391.
Eastern Extension, Australasia, and China Telegraph Co LtD Case (Great Britain v. United States) British–United States Claims Arbitral Tribunal, Award, 9 November 1923, (1926) 6 Review of International Arbitral Awards 112–118.
Philip Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann’ (2002) 13 EJIL 815–844.
Ernst-Ulrich Petersmann, ‘Human Rights in European and Global Integration Law: Principles for Constitutionalizing the World Economy’ in Armin von Bogdandy, Petros Mavroidis, and Yves Meny (eds), European Integration and International Coordination: Festschrift für CD Ehlermann (Kluwer Publishers 2002) 383, 387.
Ernst-Ulrich Petersmann, ‘From “Negative” to “Positive” Integration in the WTO: Time for “Mainstreaming Human Rights” into WTO Law?’ (2000) 37 Common Market LR 1363–1382.
Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law’.
Pascal Lamy, ‘Trade and Human Rights Go Hand in Hand’, Speech at UNITAR, 26 September 2010, available at <www.wto.org/english/news_e/sppl_e/sppl172_e.htm>.
Anja Lindroos and Michael Mehling, ‘Dispelling the Chimera of “Self-Contained Regimes”: International Law and the WTO’ (2005) 16 EJIL 857, 875.
Marrakesh Agreement preamble.
Joost Pauwelyn, ‘A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature?’ (2003) 13 EJIL 907, 934.
Mitsuo Matsushita, Thomas Schoenbaum, and Petros Mavroidis, The World Trade Organization: Law, Practice, and Policy (Oxford: OUP 2004) 26.
See Tarcisio Gazzini, ‘The Legal Nature of WTO Obligations and the Consequences of their Violation’ (2006) 17 EJIL 723.
Thomas Cottier, ‘The Principle of Common Concern of Humankind’ in Thomas Cottier (ed.) The Prospects of Common Concern of Humankind in International Law (Cambridge: CUP 2021).
S P Croley and John Jackson, ‘WTO Dispute Procedures, Standard of Review, and Deference to National Governments’ (1996) 90 AJIL 193.
Agreement on Agriculture, Agreement Establishing the World Trade Organization, Annex 1A, adopted 15 April 1994, entered into force 1 January 1995, 1867 UNTS 410.
Simone Vezzani, ‘Protection of Traditional Knowledge of Agricultural Interest in International Law’, in Antonietta Di Blase and Valentina Vadi (eds), The Inherent Rights of Indigenous Peoples in International Law (Rome: University of Rome III Press 2020) 279–327.
Michael Lennard, ‘Navigating by the Stars: Interpreting the WTO Agreements’ (2002) 5 JIEL 17.
VCLT Article 31(3)(c).
GATT Article XX(d).
Mexico—Taxes on Soft Drinks, Appellate Body Report, para. 79.
Anél A. Du Plessis and Christa Rautenbach, ‘Legal Perspectives on the Role of Culture in Sustainable Development’ (2010) 13 Potchefstroom Elec. LJ 27, 55.
Id. 46.
Id. at 48 and 62.
Eyal Benvenisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’ (2013) 107 AJIL 295, 297.
Marion and Reinhard Unglaube v. Republic of Costa Rica, ICSID Case No. ARB/09/20, Award, 16 May 2012, para. 332.2 (with regard to indirect expropriation); Compañia del Desarrollo de Santa Elena S.A. v. Republic of Costa Rica, ICSID Case No. ARB/96/1, Award, 17 February 2000 (with regard to direct expropriation).
MTD Equity Sdn. Bhd. & MTD Chile S.A. v. Republic of Chile, ICSID Case No. ARB/01/7, Award, 25 May 2004, para. 166.
Stefano Battini, ‘The Procedural Side of Legal Globalization: The Case of the World Heritage Convention’ (2011) 9 International Journal of Constitutional Law 340, 343.
Id. at 364.
Id.
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Article 11, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 33 ILM 1125 (1994).
Chemtura Corp. (formerly Crompton Corp.) v. Canada, Ad Hoc NAFTA Arbitration, Award, 2 August 2010, para. 134.
Glamis Gold, Ltd. v. United States, Award, 8 June 2009, 48 ILM 1035.
Id. paras 779 and 803.
Southern Pacific Properties (Middle East) Ltd. v. Arab Republic of Egypt, ICSID Case No. ARB/84/3, Award, 20 May 1992, (1993) 32 ILM 933, 974.
Id. at 972.
Id. at 973.
Id.
ADC Affiliate Ltd. & ADC & ADMC Management Ltd. v. Republic of Hungary, ICSID Case No. ARB/03/16, Award, 2 October 2006, para. 432.
Valentina Vadi, ‘When Cultures Collide: Foreign Direct Investment, Natural Resources, Indigenous Heritage in International Investment Law’ (2011) 42 Columbia Human Rights LR 797–889, 883.
Kate Miles, The Origins of International Investment Law: Empire, Environment, and Safeguarding Capital (Cambridge: CUP 2013) 335.
See Kyla Tienhaara, ‘Regulatory Chill and the Threat of Arbitration: A View from Political Science’, in Chester Brown and Kate Miles (eds), Evolution in Investment Treaty Law and Arbitration (Cambridge: CUP 2011) 606.
Rudolph B. Schlesinger, ‘Research on the General Principles of Law Recognized by Civilized Nations’ (1957) 51 AJIL 734–753, at 739.
Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (Cambridge: CUP 1953).
Article 38 Statute of the ICJ. The Statute of the International Court of Justice is annexed to the Charter of the United Nations. Charter of the United Nations, 26 June 1945, in force 24 October 1946, 1 UNTS XVI.
James L. Brierly, The Law of Nations: An Introduction to the International Law of Peace, H. Waldock (ed.) 6th ed. (New York: OUP 1963) 56.
Christina Voigt, ‘The Role of General Principles in International Law and Their Relationship to Treaty Law’ (2008) 31 Retfærd Årgang 3, at 5.
M. Cherif Bassiouni, ‘A Functional Approach to General Principles of International Law’ (1990) 11 Michigan JIL 768, at 780.
Antonio Cassese, International Law, 2nd ed. (Oxford: OUP 2005) 188.
Voigt, ‘The Role of General Principles in International Law’, 5.
Id. 12.
Giorgio Del Vecchio, Sui Principi Generali del Diritto (Milano: Giuffré 1958) 11.
Frances Freeman Jalet, ‘The Quest for the General Principles of Law Recognized by Civilized Nations’ (1963) 10 University of California Los Angeles LR 1041, 1044.
Jeremy Waldron, ‘Foreign Law and the Modern Jus Gentium’ (2005) 119 Harvard LR 129–147, 132.
Cheng, General Principles of Law as Applied by International Courts and Tribunals, 24.
Dissenting Opinion, Judge Tanaka, South West African Cases (Second Phase), ICJ Reports 1966, 298.
Del Vecchio, Sui Principi Generali del Diritto, 69.
But see Jaye Ellis, ‘General Principles and Comparative Law’ (2011) 22 EJIL 949, 949 (arguing that recourse to general principles does not amount to judicial law-making).
ICTY, Prosecutor v. Zoran Kupreskic, Case No.: IT-95-16-T, Judgment, 14 January 2000, para. 669 (noting that ‘In this search for and examination of the relevant legal standards, and the consequent enunciation of the principles applicable at the international level, the Trial Chamber might be deemed to set out a sort of ius praetorium. However, its powers in finding the law are of course far more limited than those belonging to the Roman praetor: under the International Tribunal’s Statute, the Trial Chamber must apply lex lata i.e. existing law, although it has broad powers in determining such law.’)
See Valentina Vadi, ‘Culture Clash? World Heritage and Investors’ Rights in International Investment Law and Arbitration’, (2013) 28 ICSID Review–Foreign Investment Law Journal 1, 1.
Glamis Gold Ltd v. United States of America, ICSID Award, 8 June 2009.
Grand River Enterprises Six Nations Ltd et al. v. United States of America, ICSID UNCITRAL NAFTA Chapter 11, Award, 12 January 2011.
See e.g. Roger O’Keefe, The Protection of Cultural Property in Armed Conflict (Cambridge: CUP 2011).
Carol Harlow, ‘Global Administrative Law: The Quest for Principles and Values’ (2006) 17 EJIL 187–214, 187.
Compare Marion Unglaube and Reinhard Hans Unglaube v. Republic of Costa Rica, Case No. ARB/08/1, ICSID Case No. ARB No. 09/20, Award, 16 May 2012 with ECtHR, Catholic Archdiocese of Alba Iulia v. Romania, ECtHR, Appl. No. 33003/03, 25 September 2012; Beyeler v. Italy, Application no. 33202/96, Judgment, 5 January 2000; Debelianovi v. Bulgaria, Application no. 61951/00, 29 March 2007.
See Grand River Enterprise Six Nations Ltd. et al. v. United States of America, Award, 12 January 2011; see also Case of the Saramaka People v. Suriname, IACtHR Series C No. 172, 28 November 2007, para. 137; Kichwa Indigenous People of Sarayaku v Ecuador, IACtHR Series C No. 245, 27 June 2012, para. 164 (holding that states’ obligation to carry out prior consultation with Indigenous peoples on the exploitation of natural resources in their land is a general principle of international law); Angela Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 27 March 2009, para. 7.6.
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, para. 327 (‘Las tierras comunales son consideradas elemento fundamental para.la supervivencia y perpetuación de la identidad étnica de los pueblos indígenas.’)
Valentina Vadi, ‘Environmental Impact Assessment in Investment Disputes—Method, Governance, and Jurisprudence’ (2010) 30 Polish Yearbook of International Law 169–205.
Bear Creek Mining Corporation v. Republic of Perú, Award, para. 218.
CESCR, General Comment No. 21, para. 50(a).
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. See also Report of the Independent Expert in the field of cultural rights, A/HRC/17/38, 21 March 2011.
Report of the Special Rapporteur in the Field of Cultural Rights, A/71/317, 9 August 2016, para. 24.
Glamis Gold, Ltd v. United States of America, Award of 8 June 2009, (2009) 48 ILM 1039. See also ECtHR, Syllogos Ton Athinaion v. the United Kingdom, App no 48259/15, 31 May 2016.
Southern Pacific Properties (Middle East) Ltd v. Arab Republic of Egypt, ICSID Case No. ARB/84/3, Award on the Merits, 20 May 1992; Compañìa del Desarollo de Santa Elena SA v. Republic of Costa Rica, ICSID Case No. ARB/96/1, Award, 17 February 2000, (2000) 39 ILM 1317; Parkerings-Compagniet AS v. Republic of Lithuania, Award, ICSID Case No. ARB/05/8, 11 September 2007; Thomas Gosling, Property Partnerships Development Managers (UK), Property Partnerships Developments (Mauritius) Ltd, Property Partnerships Holdings (Mauritius) Ltd, and TG Investments Ltd v. Republic of Mauritius ICSID Case No. ARB/16/32, Award, 18 February 2020. See also ECtHR, Kristiana Ltd. v. Lithuania, Appl. No. 36184/13, Judgment, 6 February 2018.
WHC Article 12; Glamis Gold, Ltd. v. United States of America, Award, 8 June 2009.
Compañìa del Desarollo de Santa Elena SA v. Republic of Costa Rica, ICSID Case No. ARB/96/1, Award, 17 February 2000.
Marion Unglaube and Reinhard Hans Unglaube v. Republic of Costa Rica, Case No. ARB/08/1, ICSID Case No. ARB No. 09/20, Award, 16 May 2012. See also Catholic Archdiocese of Alba Iulia v. Romania, ECtHR, Appl. No. 33003/03, 25 September 2012.
Parkerings-Compagniet AS v. Republic of Lithuania, Award, ICSID Case No. ARB/05/8, 11 September 2007; Cortec Mining Kenya Limited, Cortec (PTY) Limited, and Stirling Capital Limited v Republic of Kenya, ICSID Case No. ARB/15/29, Final Award, 22 October 2018; Southern Pacific Properties (Middle East) Ltd v. Arab Republic of Egypt, ICSID Case No. ARB/84/3, Award on the Merits, 20 May 1992. See also ECtHR, Kristiana Ltd. v. Lithuania, Case No. 36184/13, Judgment, 6 February 2018.
Rome Statute of the International Criminal Court, preamble (recalling that ‘all peoples are united by common bonds, their cultures pieced together in a shared heritage, and … this delicate mosaic may be shattered at any time.’)
Rostam Neuwirth, ‘The Future of the “Culture and Trade Debate”: a Legal Outlook’ (2013) 47 JWT 391–419, at 407.
Italo Calvino, Il Castello dei Destini Incrociati (Torino: Einaudi 1973).
Compañìa del Desarollo de Santa Elena SA v. Republic of Costa Rica, ICSID Case No. ARB/96/1, Award, 17 February 2000; Marion Unglaube and Reinhard Hans Unglaube v. Republic of Costa Rica, Case No. ARB/08/1, ICSID Case No. ARB No. 09/20, Award, 16 May 2012.
DSU, Article 3(2).
DSU, Article 3(2) (clarifying that ‘Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements’).
VCLT, Article 31(3)(c).
Marco Bronckers, ‘More Power to the WTO?’, (2001) 4 JIEL 41–65, at 45.
Juscelino F. Colares, ‘A Theory of WTO Adjudication: From Empirical Analysis to Biased Rule Development’ (2009) 42 Vanderbilt Journal of Transnational Law 383 ff.
Michael Waibel, ‘International Investment Law and Treaty Interpretation’, in Rainer Hoffmann and Christian Tams (eds), International Investment Law and General International Law (Baden-Baden: Nomos 2011) 30.
Parkerings-Compagniet AS v. Republic of Lithuania, Award, ICSID Case No. ARB/05/8, 11 September 2007; Cortec Mining Kenya Limited, Cortec (PTY) Limited, and Stirling Capital Limited v Republic of Kenya, ICSID Case No. ARB/15/29, Final Award, 22 October 2018; Southern Pacific Properties (Middle East) Ltd v. Arab Republic of Egypt, ICSID Case No. ARB/84/3, Award on the Merits, 20 May 1992. See also ECtHR, Kristiana Ltd. v. Lithuania, Case No. 36184/13, Judgment, 6 February 2018.
See e.g. Paul Diehl and Charlotte Ku, The Dynamics of International Law (Cambridge: CUP 2010) 69 (noting that ‘some entropy exists within the international legal system’); David Collins, ‘The Chaos Machine: The WTO in a Social Entropy Model of the World Trading System’ (2014) 34 Oxford Journal of Legal Studies 353–374 (observing ‘shifts in world trading system towards disorder’); Joost Pauwelyn, ‘At the Edge of Chaos? Foreign Investment Law as a Complex Adaptive System, How It Emerged, and How It Can Be Reformed’ (2014) 29 ICSID Review 372–418, 372.