The issue of cultural heritage protection in international investment in the mining and construction sectors

K Law (General)

Mai, Minh Huong ; Geiß, Robin

University:University of Glasgow

Department:School of Law

关键词: Cultural heritage, mining, construction, international law.;   

Others  :  http://theses.gla.ac.uk/72999/7/2019MaiPhD.pdf

来源: University of Glasgow

【 摘 要 】

International mining and construction projects have given rise to concerns about whether the interests of cultural heritage itself and of those who have an interest in safeguarding cultural heritage are respected and weighed. The regulations that could potentially apply could come from cultural heritage law, investment law, human rights law, archaeological rules, and laws on mining and construction. A crucial question is whether regulations that are designed to protect cultural heritage contribute to an adequate legal framework in the context of international investment activities. How are disputes between foreign investors and a host State, disputes relating to movable cultural objects, and conflicts involving non-state actors to be dealt with? The social-legal methodology is employed to highlight legal, economic and social perspectives.The conclusion that the existing legal framework is ineffective is inescapable due to the lack of specific measures at both international and national levels. There are cases in which protection of cultural heritage has been used as a justification for host State’s interference in investors’ activities, along with the preservation of the environment, human rights and public interests. Foreign investors still consider investment arbitration as a preferred method to resolve Investor-State disputes with cultural elements. Amicable arrangements may be helpful to deal with cultural property related disputes and to avoid conflicts raised by parties than this State from escalating into serious legal conflicts, but the parties involved face some difficulties in finding a suitable approach to balance their conflicting interests. From these findings, recommendations are offered to improve the laws and procedures to achieve a higher standard of cultural heritage protection. The thesis highlights the role of unique tools of international investment law – including state contracts and guidelines of investment financiers and the requirements for more efficient rules on archaeological reports and cultural impact assessment. The thesis also demonstrates that the competing interests of the different parties concerned are to be dealt with promptly and adequately if there is to be any hope of settling Investor-State disputes, disputes relating to cultural properties or conflicts initiated by local communities or nongovernmental entities.