I. Why a book on cultural heritage in international economic law
To keep memories alive, because people forget and “then of course there is justice” says Helen Mirren in “The Woman in Gold”, referring to the reason behind her legal battle for Klimt’s Portrait of Adele Bloch Bauer I (the portrait of her—in real life Maria Altmann’s—aunt).Footnote 1
Cultural heritage is a matter of identity, a collective bridge to the past and a springboard to the future. It is history’s legacy. In legal terms, cultural heritage means legal protection of customs, practices, places, artistic expressions and ways of life developed by communities and passed on from generation to generation (32). Nowadays ever more cultural heritage translates into values that international economic courts and tribunals consider in their interaction with international trade and investment protection.
The book “Cultural Heritage in International Economic Law” published by Valentina Vadi in 2023, ventures beyond the frontiers of cultural heritage law and international economic law. The author is Adjunct Professor of Law at the School of Political Sciences of the University of Florence and a Jean Monnet Research Fellow at the Robert Schumann Center for Advanced Studies of the European University Institute. Her research focuses on international investment law and world trade law as well as on international cultural heritage law and the history and theory of international law. In the book, she embraces these fields holistically, delving into the legal sources of cultural heritage law as well as World Trade Organisation (WTO) law and investment arbitral tribunals’ case law. She finely knits these together in a monograph that has as a fil rouge a systematic view of international law that defies excessive specialization.
Therefore, defragmenting international law is the unspoken mission of this research, which makes it a point of reference for experts in other fields like international environmental law and climate change, where investment treaty tribunals’ case law is on the rise. Her study can contribute to the debate on the scope of tribunals’ mandates, the pursuit of legitimate public interests, the notion of public policy and international justice.
II. Cross-fertilization and defragmentation
Different spheres of law “increasingly touch, intermingle, and blur” and the wider they each grow, the more they bring fragmentation to international law.Footnote 2 This concerns disciplines as well as instruments, approaches and lines of jurisprudence.Footnote 3 Cross-fertilization is ever more under the spotlight as disputing parties and adjudicators refer to international environmental law (including natural heritage protection) and human rights instruments to give meaning to the treaties they interpret.Footnote 4
Vadi (i) maps the points of contact between cultural heritage law, on the one hand, and international trade as well as international investment law, on the other hand, (ii) examines case law of WTO panels and the Appellate Body as well as of international arbitral tribunals, and (iii) suggests solutions “de lege lata (that is, interpreting the existing legal instruments) and de lege ferenda (amending the existing law or proposing the adoption of different legal provisions)”. These can help interpreters “to act as cartographers of international law and to find appropriate equilibrium within the system.” (5, 364, 366).
A. The landscape of international courts and tribunals
The author notes that international instruments on cultural heritage—despite their worldwide ratification—mostly lack compulsory dispute settlement. An exception is the International Criminal Court, which under Article 8(2)(e)(iv) of its Statute adjudicates on damages and/or destruction of cultural sites (77, 156). But if international humanitarian law protects cultural heritage in times of war, are there general principles of law on cultural heritage protection in times of peace?Footnote 5
Due to the absence of specialized courts, cultural heritage-related disputes migrate towards international economic courts and tribunals: WTO adjudicatory bodies and investment treaty tribunals. Yet, given their mandate, for Vadi these might be inclined to tackle matters of cultural heritage from an economic perspective. She refers, for example, to Santa Elena v. Costa Rica, where the tribunal awarded compensation to the investor who had been expropriated after the state decided to expand a World Heritage Site. For the tribunal:
Expropriatory environmental measures—no matter how laudable and beneficial to society as a whole—are, in this respect, similar to any other expropriatory measures that a state may take in order to implement its policies.Footnote 6
The author also cites the EC—Seal Products case as an example of panel report and Appellate Body’s decision narrowly reading exceptions to free trade (254-7). Despite the absence of a cultural exception under Articles XX GATT and XIV GATS, the protection of public morals, natural resources and cultural treasures are public interests that may justify discriminatory measures. However, case law interprets strictly the conditions under the chapeau of these two provisions. In the EC—Seal Products case, for instance, though the EU pursued a legitimate objective in banning seals hunting and exempting Inuit communities, the Appellate Body found flaws in the application of the measure and urged the EU to revise it (279-83). The discussion is relevant beyond the realm of international trade, given the tendency in the latest generation of investment treaties to include lists of exceptions.
In sum, the status quo with its uncertainties is not the solution.
B. A web of treaty obligations and their interaction
Another issue the author focuses on is the role of treaty obligations other than in trade agreements and investment treaties. Adjudicators whose decision-making power rests on these two instruments can interpret cultural heritage obligations differently from a specialized court. For example, the author mentions that in Southern Pacific Properties v. Egypt the tribunal found that the cancellation of a project for the development of a tourist residential complex near the pyramids, was not justified. Although the respondent state already had obligations under the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention), the tribunal considered that only the enlisting of the pyramids in the World Heritage List—which happened later—could render unlawful the claimant’s continuation of its activities.Footnote 7 Cultural heritage experts would disagree (172).
In another case analysed in the book, Allard v. Barbados, the claimant argued that the respondent had violated the fair and equitable treatment as well as the full protection and security standards in the Canada-Barbados Bilateral Investment Treaty (BIT). The investor, who had acquired wetlands to create a wildlife sanctuary, alleged that it had legitimate expectations that the state would uphold its environmental obligations and take reasonable care to protect the sanctuary. It referred to the respondent’s obligations under the Convention on Biological Diversity and Ramsar Convention on Wetlands of International Importance. Yet, the tribunal could not be persuaded that any degradation of the environment—if proved by the claimant—would be due to the respondent’s conduct. It considered none of the respondent’s statements as specific representations capable of creating a legitimate expectation.Footnote 8 For the tribunal, whether Barbados is a party to environmental conventions:
does not change the standard under the BIT, although consideration of a host State’s international obligations may well be relevant in the application of the standard to particular circumstances.Footnote 9
Similarly, in EC—Large Civil Aircraft, the Appellate Body dealt with subsidies in large civil aircraft developments and held that a fine balance must be struck between considering a member state’s international obligations and ensuring a consistent interpretation of WTO law (271). In Australia—Plain Packaging, instead, the panel referred to the Framework Convention on Tobacco Control and its Guidelines, to find the Australian regulation legitimate under the TRIPS Agreement (302).
Thus, again, the author suggests that solutions cannot only come from case law.
C. Other (Social) Obligations
Consultation with local communities and Indigenous peoples is another recurring topic in investment treaty case law on cultural heritage. In Grand River v. United States, for example, the tribunal discussed without taking position whether there is a principle under customary international law requiring governments to consult Indigenous peoples on governmental policies or actions that significantly affect them. The tribunal referred to the study of the International Law Association on the Rights of Indigenous Peoples and the UN Declaration of the Rights of Indigenous Peoples (quoted by the claimant). Yet, the tribunal found that:
It would go well beyond any articulation of the indigenous consultation norm, as well as far beyond its conceptual foundations as understood by the Tribunal, to hold that the norm obliges consultations with individual investors such as Arthur Montour, who does not purport to have been endowed with authority to represent the First Nations communities of which he is a member in regard to the matters at hand.Footnote 10
Nor could the tribunal be persuaded that “[t]he notion of specialized procedural rights protecting some investors, but not others, […] be reconciled with the idea of a minimum customary standard of treatment due to all investments” under Article 1105 NAFTA.Footnote 11 After all, tribunals have specific mandates (198, 381).
In essence, investors’ activities could impinge on the rights of local populations and consultation duties are gaining importance. But even if public participation is part of the UN’s Sustainable Development Goals, it remains outside of the scope of ISDS reforms.Footnote 12 Hence, further uncertainty lingers.
D. General Principles of Law and Other Solutions
The book notes the paucity of research on whether general principles of law on the protection of cultural heritage exist (in times of peace). As a source of law, they can help adjudicators fill the gaps in treaty law and customary international law. Vadi refers to case law that seems to point out to general principles of law like transparency, participation and accountability, a state’s duty to comply with the rule of law, due process and good governance, and of both public and private actors to obtain free, prior and informed consent of indigenous people (353-5).Footnote 13
The author mentions general principles of law in her conclusions on viable solutions to a cohesive coexistence of different fields of international law (here, cultural heritage law and international economic law). Next to alternative dispute resolution methods and interpretative tools, including the interpretation of the notion of public policy, she refers to treaty drafting and the renegotiation of existing treaties, but also to instruments like amicus curiae and counterclaims, to encourage cross-fertilization, as well as to authoritative interpretations, waivers and institutional cooperation (366 et seq.)
III. Looking ahead: what next
This monograph tackles the implications of cross-fertilization between cultural heritage law and international economic law from various angles. The author describes a journey that started on ancient trade roots, continued through the Bretton Woods conference, the Marrakesh Ministerial conference, the Doha Round (122 et seq.), and intersected, inter alia, with the World Heritage Convention. Cases, just to cite a few examples, concerned the pyramids in Southern Pacific Properties v. Egypt (171), a Native Americans’ pilgrimage route in southeast California in Glamis Gold v. United States of America (174, 187), Canadian publications in Canada—Periodicals (210), Japanese spirits in Japan—Alcoholic Beverages, (243) and traditional knowledge (313).
Considering the kind of disputes that see tribunals tackling issues of cultural heritage law and current statistical data, case law at the intersection of cultural heritage and international economic law can only increase. The first six months of 2024 confirm this trend for oil, gas and mining, construction, electric power and other energy disputes—i.e. the bulk of the cases registered at ICSIDFootnote 14—which often raise cultural heritage issues.
In conclusion, one may see in this cross-fertilization a pathway towards greater multilateralism.Footnote 15 Yet, with the stalemate at the WTO and ongoing reforms of investor-state-dispute settlement, it remains to be seen whether this trend together with the rising importance of fields like international environmental and cultural heritage law will lead to viable solutions. Though recent attempts to modernize the Energy Charter Treaty revealed the difficulty of these endeavors, ongoing procedural (including at the United Nations Commission On International Trade Law, UNCITRAL, level) and substantive reforms, a new wave of treaties, increasing acknowledgment of states’ right to regulate in the public interest, confirms that cross-fertilization is a reality. Research like the book of Vadi can enrich this ongoing discussion.
