15 IJCP 1 (2008)

handle is hein.journals/injculpy15 and id is 1 raw text is: 


International Journal of Cultural Property (2008) 15:1 24. Printed in the USA.
Copyright © 2008 International Cultural Property Society
doi: 10.1017/S094073910808003X








Cultural Heritage and International

Investment Law: A Stormy Relationship

Valentina Sara Vadi*

        What thou lovest shall remains ... What thou lovest well is thy true
        heritage.
          -Ezra Pound, Pisan Cantos XXXVI




Abstract: This paper investigates the relationship between international
investment law and the protection of cultural heritage. Two questions arise in
this connection. First, are investment agreements compatible with states'
obligations to protect cultural heritage? Second, if internal measures aimed at
protecting cultural heritage can be challenged by foreign investors, is mixed
arbitration a suitable forum to protect public interests Indeed, it seems that the
regime established according to investment treaties does not strike an
appropriate balance between the different interests concerned. After giving a
brief look at the legal framework protecting foreign investments, the conflict
areas between investment treaty provisions and national cultural policies are
explored through an empirical analysis of the recent arbitral jurisprudence
concerning cultural heritage. This paper holds that jurisprudential balancing
may not provide an adequate protection to cultural heritage; thus, cultural
exceptions should be included in investment agreements.




                               INTRODUCTION

Human rights instruments require respect, protection, and fulfillment of cultural
rights because of their profound significance for human dignity.' Being funda-
mental to every human being, cultural rights are particularly important to indig-
enous peoples and minorities. As these populations are often marginalized and
made vulnerable by economic and social adversities, their culture becomes a source
of identity and inspiration. Importantly, cultural rights include not only respect
for cultural freedoms but also the preservation of cultural heritage.

*European University Institute, Florence, Italy. E-mail: valentina.vadi@eui.eu

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