Restricting Trade in Cultural Property: National Treasures at the Intersection between Cultural Heritage and International Trade Law

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)

U of Melbourne Legal Studies Research Paper No. 769

22 Pages Posted: 4 Jan 2018 Last revised: 11 Mar 2018

Tania Voon

The University of Melbourne - Law School

Date Written: December 27, 2017

Abstract

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

JEL Classification: K33

Suggested Citation

Voon, Tania, Restricting Trade in Cultural Property: National Treasures at the Intersection between Cultural Heritage and International Trade Law (December 27, 2017). 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); U of Melbourne Legal Studies Research Paper No. 769. Available at SSRN: https://ssrn.com/abstract=3093448

Tania Voon (Contact Author)

The University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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