2017 draft preprint for inclusion in Francesco Francioni and Ana Filipa Vrdoljak (eds), Oxford Handbook of International Cultural Heritage Law (Oxford University Press, 2018, Forthcoming)
22 PagesPosted: 4 Jan 2018
Date Written: December 27, 2017
Culture and trade have a longstanding, complex relationship, covering a range of areas from digital products, to intangible cultural heritage, and the diversity of cultural expressions. Some of these areas have been subject to greater research than others. Each area requires an understanding with insights from culture, law and economics. One of the most basic interactions of culture and trade, namely through the illicit trade in cultural property, is typically assumed from a legal perspective to be addressed through the explicit exception in international trade law for measures imposed to protect national treasures. However, the definition of cultural property in the relevant treaty of the United Nations Educational, Scientific and Cultural Organization (‘UNESCO’) is not necessarily identical to the meaning of national treasures in the law of the World Trade Organization (‘WTO’). Moreover, the WTO Appellate Body has shown reluctance to apply non-WTO law in determining WTO disputes, such that a conflict between relevant UNESCO and WTO provisions or the corresponding domestic regulations might not necessarily be resolved as expected. This conclusion provides one example of the possible limitations of the current Appellate Body approach to broader international law and also suggests, with respect to cultural property, that closer alliance in treaty drafting may be required to ensure greater coherence between these regimes.
Keywords: national treasure, international law, culture, cultural property, trade, WTO