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Cultural Heritage in International Economic Law

Cultural Heritage in International Economic Law

Author: Valentina Vadi
Publisher: Brill Nijhoff
ISBN: 9789004347816
Published In: March 2023
Format: Hardback
Jurisdiction: Netherlands ? Disclaimer:
Countri(es) stated herein are used as reference only

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Can cultural heritage be adequately protected vis-à-vis economic globalization? This book investigates whether and how international economic law governs cultural phenomena by mapping the relevant legal framework, discussing the relevant disputes concerning cultural elements adjudicated before international economic ‘courts’ (namely the World Trade Organization adjudicative bodies and investment treaty arbitral tribunals), and proposing legal methods to reconcile cultural and economic interests. It thus provides a comprehensive evaluation of possible solutions, including evolution of the law through treaty interpretation and reforms, to improve the balance between economic governance and cultural policy objectives.

List of Abbreviations

Table of Cases

Introduction

Aims and Objectives of the Book

The Centrality of the Economics-and-Culture Debate in International Law

The State of the Art

Methodology

Chapter Plan

PART 1: Cultural Heritage, Trade and Foreign Direct Investment: Defining and Connecting the Fields

1: Cultural Heritage in International Law

Introduction

Defining Cultural Heritage

2.1 Culture

2.2 Heritage

2.3 Cultural Heritage

The Various Categories of Heritage

3.1 World Heritage

3.2 Underwater Cultural Heritage

3.3 Intangible Cultural Heritage

3.4 Cultural Diversity

3.5 Indigenous Cultural Heritage

A Multipolar Cultural Heritage Law

4.1 National v. International

4.2 Public v. Private

4.3 Mandatory v. Voluntary Approaches

Cultural Governance as a Battlefield

5.1 Tangible v. Intangible Heritage

5.2 Toward a More Democratic and Bottom-up Heritage Governance

5.3 Pragmatism v. Idealism

5.4 Substantive Overreach and Procedural Underachievement?

5.5 Heritagization - Heritage v. Humanity?

Cultural Heritage as a Human Rights Issue

Conclusions

2: International Economic Law

Introduction

Content, Aims and Objectives of International Economic Law

The Sources of International Economic Law

State Sovereignty and International Economic Law

The Settlement of International Economic Disputes

5.1 The Main Features of Investor-State Arbitration

5.2 The Main Features of the WTO Dispute Settlement Mechanism

5.3 Converging Divergences

The 'Legitimacy Crisis' of International Economic Law

Final Remarks

3: Connecting the Fields

Introduction

The Linkage Issue

Protectionist Cultural Policies v. Efficient Regulation?

Global Cultural Governance by International Economic Courts?

The Settlement of Heritage-Related International Economic Disputes

Conclusions

PART 2: When Cultures Collide: Cultural Heritage, Trade and Foreign Direct Investment

Introductory Note

4: Cultural Heritage in International Investment Law and Arbitration

Introduction

The Diaspora of Cultural Heritage-Related Disputes before Arbitral Tribunals

The Notion of Investment

Expropriation

4.1 Direct Expropriation

4.2 Indirect Expropriation

Compensation Claims

Fair and Equitable Treatment

6.1 Legitimate Expectations

6.2 International Law as a Source of Legitimate Expectations

6.3 A New Tool to Enforce International Cultural Heritage Law?

Full Protection and Security

Non-Discrimination

8.1 Direct Discrimination

8.2 Indirect Discrimination

8.3 Positive Measures

Performance Requirements

10.

Critical Assessment

11.

Conclusions

5: Cultural Heritage in International Trade Law

Introduction

The Theory of Comparative Advantage

Non-Discrimination

3.1 Direct and Indirect Discrimination

3.2 The Likeness Test

3.3 Legitimate Distinctions?

Quantitative Restrictions

National Treasures of Artistic, Historic or Archaeological Value

5.1 Aim, Scope and Content of Article XX( f )

5.2 The 1970 UNESCO Convention

5.3 The Linkage between Article XX( f ) and the 1970 UNESCO Convention

Public Morals

6.1 Defining Public Morals

6.2 Case Studies

6.3 Morality and Trade Revisited

The Security Exception

Intellectual Property

8.1 Copyright and Culture

8.2 Geographical Indications

8.3 Traditional Knowledge

Agriculture

10.

Conclusion

6: Converging Divergences in the Jurisprudence of Cultural Heritage-Related International Economic Disputes

Introduction

Converging Divergences between the Two Fields

Converging Divergences in the Jurisprudence of Cultural Heritage-Related International Economic Disputes

Distinguishing Cultural Protection from Cultural Protectionism

Mainstreaming Cultural Heritage in International Economic Law

Toward Good Cultural Governance?

The Emergence of General Principles of Law Requiring the Protection of Cultural Heritage

Conclusions

7: Challenges and Prospects

Introduction

De Lege Lata

2.1 Negotiating Cultural Disputes

2.2 Conflict and Reconciliation of Norms

2.3 The Applicable Law

2.4 Transnational Public Policy

2.5 Treaty Interpretation

De Lege Ferenda

3.1 Cultural Exceptions

3.2 Counterclaims

3.3 Amici Curiae

3.4 Authoritative Interpretations, Waivers and Amendments

3.5 Institutional Cooperation

Conclusions

Bibliography

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