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Cultural Heritage and Economic Development in International and European Law

Periodic Reporting for period 1 - HERITAGE (Cultural Heritage and Economic Development in International and European Law)

Reporting period: 2015-05-01 to 2017-02-28

Can the protection of cultural heritage and the promotion of economic development be reconciled in international and European law? The protection of cultural heritage is a fundamental public interest that is closely connected to fundamental human rights and is deemed to be among the best guarantees of international peace and security. Economic globalization and international economic governance have spurred a more intense dialogue and interaction among nations – potentially promoting cultural diversity and providing the funds to recover and preserve cultural heritage of nations. However, these phenomena can also jeopardize cultural heritage. While trade in cultural products can lead to cultural diversity, if it is imbalanced, it can lead to cultural homogenization. In parallel, foreign direct investments in the extraction of natural resources have the ultimate capacity of changing cultural landscapes. At the same time, the increase in global trade, economic integration and foreign direct investment has determined the creation of legally binding and highly effective regimes that demand states to promote and facilitate trade and foreign direct investment. Does the existing legal framework adequately protect cultural heritage vis-à-vis economic globalization?

This research project aims to investigate whether and how international law and European Union (EU) law govern cultural phenomena and respond to the challenges posed by economic globalization. Its key objectives are: 1) to map in a systematic and complete fashion the relevant legal framework and disputes concerning cultural elements adjudicated before international courts and tribunals (namely the International Court of Justice, the World Trade Organization adjudicative bodies, investment treaty arbitral tribunals and the Court of Justice of the European Union); 2) to propose legal methods to reconcile these different values both de lege lata (i.e. interpreting the existing legal instruments) and de lege ferenda (proposing the adoption of amendments or different legal provisions); and 3) to scrutinize and critically assess the EU policies concerning the intersection between economic development and culture. Recent institutional developments have mainstreamed cultural heritage in the fabric of EU law. This study investigates how culture has been mainstreamed in the European Union acquis, and whether the European model of cultural and economic governance can constitute a positive model for reconciling the different interests at stake and/or whether it may contribute to the development of general principles of law requiring the protection of cultural heritage. The main outcome of this research project will be a monograph to be published by an international publisher; an edited volume, and a number of articles to be published in international and EU law journals.

The research project presents both interdisciplinary and multidisciplinary aspects. The proposal has an interdisciplinary nature, focusing on the protection of cultural heritage in international and EU law, to assess whether and if so how international and European courts and tribunals take into account to national cultural policies and whether there may be mutual supportiveness between the protection of cultural heritage and the promotion of trade and investment in international and EU law, i.e. these objectives should be understood and applied as reinforcing each other. The proposed project is multidisciplinary because it crosses traditional boundaries between academic disciplines and connects and integrates different schools of thought to explore an area of inquiry at the crossroads between law, economics and culture. While the analysis has mainly a legal character, reference to heritage studies and international relations will be made.
The project HERITAGE is being implemented efficiently and effectively, following its workplan very closely. Relevant bibliographical research was conducted in the field of cultural heritage law. The data was analysed. The Principal Investigator (PI) was awarded a prestigious Visiting Fellowship at the Law Department of the European University Institute, in Florence, which enabled her to collect and scrutinize relevant materials in the area of EU law and policy. Literature in the areas of culture and international law, culture and international trade law, and culture and EU law was collected and read. Literature already collected in the area of international investment law was updated. Several draft chapters were written.

After glowing peer reviews, the PI secured a publication agreement with Brill, an international publisher, for the open access publication of the research monograph Cultural Heritage in International Economic Law.

Preliminary results of the research project were presented at international conferences and or/as invited lectures (in chronological order):

1. Food Wars: Food, Intangible Cultural Heritage and International Trade, paper presented at the Global Ecological Integrity Group Annual International Conference, The Common Good: The Role of Integrity in the Support of Life and Human Security, held at the University of Parma, Italy, on 29 June 2015;

2. Food Wars: Food, Intangible Cultural Heritage and International Trade, paper presented at the roundtable Food Markets and Cultures of Consumption held at Monash University Prato Center, Prato, Italy, on 3 July 2015;

3. International Economic Courts and the Protection of Cultural Heritage, Guest lecture held at the Lauterpacht Centre for International Law, Cambridge University, on 6 November 2015;

The lecture (in English) was recorded and is available at the website of the Lauterpacht Centre of International Law, Cambridge University:

4. La tutela delle culture indigene e tradizionali come limite alla applicazione delle norme sulla tutela degli investitori [The Protection of Indigenous Cultural Heritage in International Investment Law and Arbitration], invited presentation, at the workshop La specificità culturale e giuridica delle popolazioni indigene: profili di diritto internazionale, held at the Faculty of Law, University of Rome III, Rome, on 16 November 2015;

The lecture (in Italian) was recorded and is available at . Professor Vadi’s presentation starts at 1:30 and ends at 2:02.

5. Transparency in International Investment Law and Arbitration, paper presented at the conference: Transparency v. Confidentiality in International Economic Law, organized by the European Society of International Law, International Economic Law Interest Group, and held at the University of Bologna, Ravenna Campus, on 20 November 2015;

6. The Protection of Cultural Heritage and Foreign Investments in Post Conflict Zones, paper presented at the conference: International Law and the Intentional Destruction of Cultural Heritage, co-organized by Professor V. Vadi and Professor F. Francioni, and held at the European University Institute Law Department, on 3 March 2016;

7. Charting New Frontiers in International Economic Law: The Cultural Diversity Conundrum, paper presented at the theme International Economic Law in Context of the Socio-Legal Studies Association Annual Conference, held at the Law School, Lancaster University, on 5 April 2016;

8. Exploring the Borderlands: The Role of the Individual in International Cultural Law, paper presented at the International Law Association British Branch Spring Conference, held at Lancaster University on 8–9 April 2016;

9. The Jurisprudential Foundations of Proportionality in International Law, paper presented at the Twenty-sixth Investment Treaty Forum Public Conference
The project goes beyond the state of the art, contributing to the fields of international law and EU law by mapping their interaction with regard to culture and economic development in a comprehensive fashion. The interplay between the protection of cultural heritage and the pursuit of economic interests in international and EU law has been approached adopting a variety of perspectives and methods. In particular, the available literature can be placed in five broad categories: 1) examination of the interplay between international trade and cultural policies; 2) examination of the interplay between international investment law and cultural policies; 3) cultural law scholarship; 4) cultural rights scholarship; and 5) examination of the EU cultural policy.
In recent years international economic law scholars have started exploring the complex interplay between global economic governance and cultural policies. Scholars have acknowledged that while economic liberalization may have positive effects on public well-being, it may also negatively affect some fundamental public interests such as cultural and linguistic policies. Yet, most have approached the relevant issues focusing on the relevant treaty provisions, leaving the critical assessment of relevant jurisprudence aside. Furthermore, when cultural heritage related cases have been examined, they have been considered from a mere economic law standpoint, leaving cultural policy arguments aside. In parallel, cultural law scholars have neglected the emerging cases due to their focus on more traditional aspects of cultural governance. Moreover, in the human rights discourse, cultural rights have been neglected for decades and have been underexplored in comparison to political, economic, and social rights.Only in the past decade, have cultural rights received increased attention. However, human rights scholars have only partially touched upon the tension between economic globalization and cultural rights.
The project fills a significant lacuna in contemporary legal studies and sheds light on a legal issue that has a broad impact on national societies and the international community as a whole. The interplay between the protection of cultural heritage and economic development in international and EU law has not been approached in a comprehensive fashion by either cultural heritage experts or international law scholars. In particular, a comprehensive critical analysis of cultural heritage related cases adjudicated before international and European courts and tribunals is yet to be written. Yet, in the light of the increasing global economic interdependence, and the growing tension between the protection of cultural heritage and the promotion of trade and investment, it is of crucial importance to examine how this interaction takes place in practice. In this regard the jurisprudence of international courts and tribunals, including the International Court of Justice (ICJ), the WTO adjudicative bodies, investment treaty tribunals as well as the CJEU offer a fertile field of analysis. This research examines the adequacy of the existing regimes to address this complex tension. In this regard, it specifically questions whether the jurisprudence of the CJEU can provide a useful paradigm for reconciling the protection of cultural heritage and economic integration.
The project would go beyond the state of the art, mapping the intersection between the protection of cultural heritage and economic interests in an inclusive fashion. The project adopts a pioneering approach, as it is based on the implementation of a double track. Traditionally scholars have adopted a single track— i.e. they have focused on cultural heritage law or on international and EU law, using the respective categories of each field. This research project, however, adopts a double track. On the one hand, the study will focus on the impact of economic globalization on the five different but related categ