Gravity and Grace: Foreign Investments and Cultural Heritage in International Investment Law.

• Author: Vadi, Valentina

TABLE OF CONTENTS I. PRELUDE: GRAVITY AND GRACE 1008 II. REDEP:MING GRAVITY WITH GRACE: FOREIGN INVESTMENTS AND CULTURAL HERITAGE 1017 III. INTERNATIONAL INVESTMENT LAW AND ARBITRATION AS A TOOL OF GLOBAL CULTURAL GOVERNANCE 1021 A. The Notion of Investment 1023 B. Non-Discrimination 1027 C. Fair and Equitable Treatment 1032 D. Expropriation 1036 E. Remedies 1040 IV. GRAVITY AND GRACE IN INTERNATIONAL LAW 1042 V. POLICY OPTIONS 1046 A. Inserting Cultural Clauses in International Investment Agreements 1046 B. A Jurisprudential Approach to Promote the Consideration of Cultural Heritage in International Investment Arbitration 1047 C. Counterclaims 1048 VI. CONCLUSIONS 1049 I. PRELUDE: GRAVITY AND GRACE

Protecting cultural heritage is a fundamental public interest that is closely connected to the respect, protection, and fulfilment of human rights and is among the best guarantees of international peace and security. Economic globalization and international economic governance have fostered intense dialogue and interaction among nations, potentially promoting cultural diversity and providing the funds to recover and preserve cultural heritage. Foreign direct investments can facilitate cross cultural exchanges, thus contributing to not only economic development, but also conflict prevention and international peace.

However, these phenomena can also jeopardize cultural heritage. Foreign direct investments in the extraction of natural resources have the potential to change cultural landscapes, destroy monuments, and erase memories. In parallel, international investment law constitutes a legally binding and highly effective regime that demands that states promote and facilitate foreign direct investments. The privileged regime created by international economic law within the boundaries of the host state has increasingly determined a tension between the promotion of economic development and cultural sovereignty, meant as the regulatory autonomy of the host state in the cultural field. Does the existing legal framework adequately protect cultural heritage vis-a-vis the economic interests of foreign investors?

To properly address the interplay between foreign direct investments and world-cultural heritage in international investment law and arbitration, this Article complements traditional tools of legal analysis with a novel, interdisciplinary, philosophical perspective. Not only can philosophy be fruitfully combined with legal research, but in some cases, it becomes indispensable, as, "for almost any doctrinal subject, there is a relevant philosophical dimension so that philosophical analysis could provide more depth to the research." (2) Although philosophy and law have their own languages, methods, and techniques, both disciplines conduct research in the humanities to investigate human action and are based on interpretation and argumentation. (3) In fact, philosophy can provide "insights regarding central or fundamental concepts and principles, or the ideas behind the legal order." (4) It can help clarify concepts and principles used in law and reflect on what law should be or what principles ought to be accepted. (5) For legal scholars, philosophical insights are useful because "they are important building blocks" for constructively criticizing the legal order, identifying future directions of the field, and building it as a coherent system. (6)

Until about a decade ago, philosophical inquiry related to international law was commonly limited to a few subjects, such as distributive justice and just-war theory. Since then, however, philosophers have increasingly written about other aspects of the global political order, (7) and international lawyers have increasingly adopted philosophy as a research tool for investigating their field. (8) International lawyers can benefit from the insights of philosophers for several reasons. First, "philosophy . . . provides a set of analytical tools to [examine] core questions that underlie the structure and rules of [international law]." (9) For instance, in relation to international economic law, "philosophical work offers a rigorous way of arguing about who should bear the benefits and burdens of transnational economic interactions, whether trade, investment, or finance." (10) Second, "rules that can be defended in terms of their legitimacy, fairness, or even justice stand a better chance of providing international actors good reasons to respect the rules, or good reasons to change or supplement them." (11) Third, engagement with philosophy can encourage lawyers to take "an ethical position on issues of global justice." (12)

In light of these recent developments, this Article relies on the philosophy and thought of Simone Weil (1909-1943), one of the most important thinkers of the twentieth century, to examine how cultural and economic forces can be balanced in international law. A philosopher, mystic, and resistance fighter, Weil was a defining figure of the twentieth century. "[D]espite her provoking, masterful, [and] even extraordinary work," her thought has remained unknown in the discipline of international law for decades. (13) Her mysticism, life experience, and early death have contributed to a characterization of her philosophy as impractical and other-worldly. (14) Such idealizations, however, do not truly render "the complexity and range of her writing, nor her own method of inquiry." (15) In fact, "in thought and in deed[,] Simone Weil was fundamentally engaged in, and constantly struggling to make sense of, the world in which she lived." (16) Therefore, it is time for international lawyers to investigate her philosophy and thought in relation to their field. (17)

Weil's philosophy is characterized by the interplay between gravity and grace intended as counter weighing forces. On the one hand, the force of gravity reflects "the gravitational pull of the actual," and refers to the material reality of violence and war, which afflict human beings and communities. (18) On the other hand, grace constitutes an immaterial reality made of beauty, arts, and culture which elevates human beings. (19) The interplay of gravity and grace is at the heart of Weil's thought. (20) Her work on colonialism and the use of force has already influenced the field of international relations. (21) Scholars have scrutinized her work on colonialism's brutality and its constitutive elements, namely "uprooting, loss of the past, degradation of labor, and the pursuit of unlimited profit and power." (22) What is missing is an appraisal of how her reflection on heritage and economic development can influence the interpretation and application of international law and, ideally, its future developments. Weil reflected on art, roots, heritage, and belonging, as well as the negative consequences associated with industrialization and economic development. (23) Therefore, her work can be used as both a starting point and a supplement to legal research on the interplay between the promotion of foreign investments and the safeguarding of cultural heritage, because it reflects on why it is worth safeguarding cultural heritage and how countervailing economic and cultural forces can be balanced. While many legal scholars have discussed the balance of economic and cultural interests without indicating which interests are more important or how a standard of weight can be constructed for the appraisal of such interests, (24) Weil's philosophical reflection answers certain questions that treaties, jurisprudence, and other legal sources cannot. She "pointed to a different metric of valuation, one that appreciates the entire 'radiance of the spirit,' the whole being." (25) In summary, it offers "the guiding light of a theory of values," thus enriching "our understanding of the human significance of law." (26)

In referring to Weilian philosophy, this Article does not assume Weil's perspective to be the only, let alone the best, point of view. Rather, it highlights that, while contradictory views persist on whether safeguarding cultural heritage should prevail over promoting economic development, Weil offers interesting, sound, and convincing arguments on why heritage should be protected. More importantly, such ideas are compatible with the existing legal framework, and can inspire its functioning in general and its implementation in particular. This Article conceptualizes the linkage between the promotion of foreign direct investments and the safeguarding of world heritage in terms of gravity and grace. Weil used the expression "gravity and grace" throughout her work and, more significantly, in her debut work, Grauity and Grace, and her last masterpiece, The Need for Roots, both published posthumously.

After the German occupation of Paris during World War II, the French philosopher, mystic, and political activist Simone Weil found refuge in southern France, where she worked in the grape harvest. (27) Before moving further to escape persecution, she entrusted some of her notebooks to the French philosopher Gustave Thibon (1903-2001), who collected and published her writings on her behalf after her untimely death. (28) Weil's first publication, Gravity and Grace, has become a source of spiritual guidance and wisdom for countless individuals. Weil had a powerful style and adopted an aphoristic technique; the indeterminacy of some of her aphorisms allows for a variety of different interpretations, offering each reader light for the spirit and nourishment for the soul.

In Gravity and Grace, Weil distinguishes natural "gravity" (heaviness, pesanteur) from supernatural "grace" (lightness, grace). (29) Gravity is identified as "the forces of the natural world that subject all created beings physically, materially, and socially, and thus functions as a downward 'pull,'" while grace is identified as attention to the essential, the divine that nourishes the soul of human beings and thus constitutes an upward pull...