Cultural Heritage in International Economic Law. By Valentina Vadi. Leiden/Boston: Brill Njihoff, 2023. Pp. xxvi, 495. Index.

The policy domain of “trade and culture,” like other debates over the appropriate regulation of trade and non-trade issues,¹ has been commonly constructed as “trade versus culture” in the sphere of international rulemaking. At the heart of the “trade versus culture” quandary is the specific dual nature of the subject of regulation—namely, cultural goods and services. These are, on the one hand, commodities that can be traded and are therefore subject to international economic law. On the other hand, as the 2005 UNESCO Convention on Diversity of Cultural Expressions notes, cultural goods and services have a distinctive nature as “vehicles of identity, values and meaning.”² Accordingly, many states over the years have adopted packages of regulatory measures that, among other things, subsidize domestically produced cultural goods, restrict cultural imports, or otherwise favor national over foreign content (e.g., through tax, licensing, and ownership rules). These measures often impede trade, pitting interests in open markets against efforts to use state policy to mitigate trade's social repercussions. And although cultural policies may address certain market failures³ or fight against illicit practices in cultural heritage trade, in many cases their justification is predominantly political, and borders on economic protectionism, especially in situations of contemporary culture. The line between justified and unjustified interventions is hard to draw, particularly as “culture” is a broad concept that can be filled with different meanings in different contexts—ranging from ancient cultural artifacts through traditional knowledge to entertainment in music, films, or even online games.

The contentious nature of trade and culture has continued for many years, especially with the advancement of globalization and as in domestic contexts, trade has often come to be perceived as a peril to the protection and promotion of national cultures, and more broadly, as a channel of commodifying and homogenizing culture.⁴ The political economy of the interfaces between trade and culture has also been complex and led to divergences in approaches across jurisdictions⁵ and to various forms of international cooperation developed under separate venues, as in “trade or culture.” Thus, despite the inherent linkages between trade and culture, we have witnessed a profound fragmentation of the rule frameworks.⁶ Multiple, overlapping, and non-hierarchical regimes abound; there is insufficient (or non-existent) coordination among these regimes, and the hard rules of international economic law exert a strong gravitational pull.⁷

Against this complex and somewhat grim for cultural proponents picture, Valentina Vadi's work⁸ argues that the interaction between the protection of cultural heritage and international economic governance deserves further scrutiny that might reveal a more nuanced and partially mutually supportive relationship. Such an attempt is rare in contemporary international law scholarship, and it should be underscored that Valentina Vadi, an adjunct professor of law at the University of Florence and research fellow at the Department of Political Science, Law, and International Studies at the University of Padua, is uniquely positioned to undertake this effort due to her long-standing track-record in and deep knowledge of the relevant fields of law.⁹

Vadi's book has three complementary primary objectives to provide the most comprehensive study thus far on the interaction between cultural and economic law. The first and rather logical aim is to delineate and carefully explore the legal frameworks that govern cultural heritage protection on the one hand and economic globalization on the other. The second aim is to explore is how cultural heritage-related disputes have been addressed by what she defines collectively as “international economic courts”¹⁰—i.e., the adjudicative bodies of the World Trade Organization (WTO) and investment treaty arbitral tribunals. In a third step that builds upon and extends the preceding analysis, Vadi proposes both interpretive and legislative measures to reconcile economic and cultural interests moving toward a practice of “good cultural governance.”¹¹

The book's seven chapters are accordingly structured to address all these objectives and the analysis is painstakingly done, rich, and superbly embedded in the existing literature. Chapter One, “Cultural Heritage in International Law,” not only defines cultural heritage and its various categories, such as world heritage, underwater cultural heritage, intangible cultural heritage, cultural diversity, and Indigenous cultural heritage, but also discusses the multipolar nature of cultural heritage law, highlighting the tensions between national and international, public and private, and mandatory and voluntary approaches. Cultural governance is indeed depicted as a “battlefield”¹² due to: (1) existing intrinsic dichotomies between the tangible and intangible dimensions of cultural heritage; (2) the shifts from the past elitist conceptualization of cultural heritage to contemporary bottom-up approaches; (3) the clash between idealism and pragmatism in cultural heritage law; (4) the substantive overreach and procedural underachievement of cultural heritage law; and finally (5) the potential clash between an excessive safeguarding of heritage and the protection of human rights.

Chapter Two explores international economic law and provides an excellent but succinct overview of its sources, content, aims, and objectives. The tensions around state sovereignty and the therewith linked legitimacy crisis of international economic law are highlighted. Specific attention is paid to the settlement of international economic disputes. This involves a comparison of the distinct features of investor-state arbitration and the WTO dispute settlement mechanism with the systems evolving toward a state of “converging divergences”—a concept that is frequently used by Vadi to describe the dynamics of institutional separation yet coupled with substantive and judicial dialogue.¹³ A key element of this inquiry reveals the gravitational pull of international economic courts, as institutionally more developed—which can potentially contribute to addressing cultural issues that are substantively regulated in a sophisticated manner in international cultural heritage treaties, which are however not procedurally equipped to either resolve disputes or enforce obligations.

This potential for global cultural governance by international economic courts is further explored in Chapter Three, “Connecting the Fields,” which in a sense completes the preparatory work for the book's main argument by exploring the intrinsic linkages between cultural heritage protection and international economic law. Vadi argues that due to the expansive character of international economic law, it increasingly interacts with other regimes of international law and thus becomes “porous to noneconomic values including, but not limited to, human rights, public health, environmental protection, and cultural concerns.”¹⁴ It is this linkage that deserves further attention and may offer channels for potential coordination in the broader evolution of public international law.¹⁵ Although international economic courts are not an optimal venue for resolving cultural heritage disputes, as the number of adjudicated conflicts with cultural elements increases, this may contribute to the formation of general principles of law or customary international law that mandates the protection of cultural heritage, as Vadi maintains.

The second part of the book, “When Cultures Collide: Cultural Heritage, Trade and Foreign Direct Investment,” tests this hypothesis and explores the complex interplay between cultural policies and economic development in practice by examining the jurisprudence of international economic courts. Chapters Four and Five respectively evaluate international investment and international trade law, and provide the most comprehensive analysis of culture-related disputes to date under these regimes. The chapters do not just analyze selected cases but structure the discussion in an elegant way along key concepts of international investment and trade law and above all, critically assess the relevant cases using both economic and cultural considerations. This careful analysis reveals mixed results. It appears that while international investment law has not developed any institutional machinery for the protection of cultural heritage, there is a jurisprudential trend, in particular in recent years, that takes cultural heritage into consideration. Although most of the cases do not openly deal with cultural heritage and there is a clear stress placed on economic freedom, the attention paid to cultural concerns by most arbitral tribunals is still remarkable. Vadi argues that this “magnetism of arbitral tribunals”¹⁶ is a mixed blessing—it can on the one hand improve good cultural governance and the transparent pursuit of cultural policies; on the other hand, from a cultural heritage perspective, there may be an institutional bias, as investment tribunals cannot adjudicate on the eventual violation of international cultural heritage law.

Similarly, as discussed further in Chapter Five, the WTO adjudicative bodies, which have as their clear mandate under the WTO Agreements “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,”¹⁷ have dealt with cultural questions from their vantage point by prioritizing free trade over cultural concerns. Vadi carefully analyzes cases involving the public morals exception of Article XX(a) of the General Agreement on Tariffs and Trade 1994¹⁸ and Article XIV(a) of the General Agreement on Trade in Services¹⁹ that have become used in culture-related disputes.²⁰ To take the example of the China—Audiovisual Products case, there the United States challenged a censorship scheme implemented by China for imported cultural goods, such as films, sound recordings, and publications. China made a direct reference to the UNESCO Convention on Diversity of Cultural Expressions and the preceding 2001 Universal Declaration on Cultural Diversity and argued that it was legitimate to adopt a content review mechanism to prevent the dissemination of cultural goods that might negatively affect public morals, or “Chinese culture and traditional values.”²¹ While the Panel admitted the applicability of the public morals exception with regard to cultural goods measures,²² as there was at least one other reasonably available alternative, China could not demonstrate that the relevant provisions were “necessary” for protecting public morals.²³ In this sense, while there might be room for cultural policy considerations under WTO law, this room is limited by the obligations of the adjudicative bodies to stick to the letter of the WTO Agreements and curb protectionism. And, as in investment disputes, while WTO panels can consider whether a policy that protects culture impermissibly violates WTO norms in the sense of providing of “too much” protection, they cannot adjudicate claims that policies violate international cultural law in the sense of providing “too little” protection.

The chapter on international trade law is complemented with two sectorial discussions where distinct tensions between trade regulation and culture occur, namely intellectual property (IP) protection, with specific focus paid on copyright, traditional knowledge, and geographical indications and on agriculture. Here the analysis is somewhat thin and does not take into account the full range of issues, in particular around contemporary creativity; nor does it account for newer developments, such as the initiatives under the World Intellectual Property Organization (WIPO) with regard to the protection of traditional knowledge and traditional cultural expressions.

Part Two concludes with Chapter Six, which draws together the previous analytical strands and highlights yet again the converging divergences in the jurisprudence of cultural heritage-related international economic disputes. These trends of converging divergences are observable on the one hand between the two separate fields of international economic law²⁴ and on the other hand across the different decisions taken under them. Despite these doctrinal shortcomings, Vadi situates the jurisprudential evolution in the broader picture of international governance and sees a great number of opportunities including more consistent and culturally sensitive adjudication. She is convinced that the review by international economic courts of domestic regulations could improve the transparent pursuit of legitimate cultural policies and contribute to good cultural governance, which 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, as well as to the exercise of state authority according to due process and the rule of law that includes respect for human rights and fundamental freedoms.²⁵

Vadi details her reform agenda in the concluding Part Three. For this purpose, Chapter Seven lists a number of legal tools that can foster the mutual supportiveness of the protection of cultural heritage and the promotion of trade and investment in international economic law, both de lege lata and de lege ferenda. In the former sense, Vadi suggests several interpretive strategies to better protect cultural heritage within the existing international economic legal framework that include invoking exceptions clauses in economic treaties for the protection of national treasures and leveraging the concept of public interest to justify cultural preservation measures. In the latter sense, Vadi advocates for the inclusion of explicit cultural heritage protection clauses in future economic treaties and for amendments to existing treaties to better reflect cultural considerations. Indeed, some treaties, such as the EU–CARIFORUM Economic Partnership Agreement or the EU–South Korea Free Trade Agreement, do include Cultural Cooperation Protocols, although the impact of these provisions must not be overstated.²⁶ Vadi suggests further that cultural impact assessments should become a standard part of economic treaty negotiations and implementation, in analogy to environmental impact assessments and that cultural experts should be consulted when international economic courts adjudicate culture heritage-related disputes.

Overall, Vadi boldly charts many pathways that can lead toward a more mutually supportive interaction between international economic and cultural law and toward mainstreaming of cultural heritage in international economic law. Adoption of her suggestions could contribute to a process of defragmentation of public international law and a more harmonious international legal order. Vadi's book undoubtedly makes a substantial contribution to the existing literature²⁷ and encourages us to look at international trade law, international investment law, and international cultural heritage law not as isolated branches of international law. With its rich, comprehensive, and insightful analysis, Vadi helps us understand the institutional, structural, and legal differences between cultural and economic law, and provides the necessary tools to make the linkages between them to protect cultural heritage for us and future generations. Readers will appreciate her highly readable style with many illustrative examples as well as historical references, although the repetition of her core arguments is at times superfluous.

Despite the book's many virtues, it should be read in light of the contemporary political economy of international law in general and of the fields of cultural heritage and economic law in particular. On the one hand, complex multipolar geopolitics and unilateral industrial policies have rendered international cooperation more difficult, if not impossible.²⁸ On the other hand, recent years have not witnessed any proactive measures to link trade and culture but rather the opposite; even among strong cultural proponents, such as the European Union, there has been in recent years largely a disengagement from such efforts and merely a pursuit of safeguarding domestic space for cultural measures.²⁹ This reality check made me highly skeptical that any of the suggested paths of mutual supportiveness will ever be taken. It also made me think of where the actual rulemaking currently occurs, in preferential venues through bilateral or regional free trade agreements (FTAs) that increasingly and comprehensively regulate all trade, including areas that are culture-related, such as intellectual property, digital trade, Indigenous peoples’ rights, cultural cooperation, and culture-related preferences.³⁰ Unfortunately, Vadi's book, despite some anecdotal references, does not contain a fully fledged analysis of FTAs, which do belong to international economic law, and their interaction with cultural concerns. A second, and again more contemporary, observation is that Vadi's inquiries ignore the role played by technological developments, in particular digitization, which markedly disrupt both trade and culture, albeit in different ways. This disruption challenges the adequacy of existing regulatory frameworks as, among other things, the entire lifecycle of content production, distribution, consumption, and re-use changes, and new concerns, such as platform power or disinformation, arise.³¹ Notably, such developments may also put the relationship between trade and culture in a completely different context and demand tools, other than, for instance, treaty interpretation, for their effective reconciliation.³²

Perhaps a project addressing these issues is already in the workings. For now Valentina Vadi has provided us much food for thought, entirely appropriate given that, as she rightly points out, food has both cultural and economic dimensions.