Interpreting and Applying Article XX(f) of the GATT 1994: “National Treasures” in International Trade Law

• Published in: Santander Art & Culture Law Review 2019, Vol.5 (2), p.35-56
• Main Author: Gagliani, Gabriele
• Format: Article
• Language: English
• Subjects: Cultural history; History of Law; International Law; International relations/trade; Law on Economics; Museology Heritage Studies
• ISSN: 2391-7997; 2450-050X
• DOI: 10.4467/2450050XSNR.19.012.11560

Article XX(f) of the GATT 1994 provides WTO Members with the possibility to adopt measures, which would otherwise be inconsistent with the GATT 1994, when such measures are “imposed for the protection of national treasures of artistic, historic and archaeological value”, and when the requirements of the so-called “chapeau” of Article XX are complied with. This provision has never been tested by WTO Panels or the Appellate Body (AB), and scholarly doctrine has not been unanimous in its reading. This paper analyzes this provision, combining previous AB jurisprudence and public international law rules on treaty interpretation and application in order to elucidate the scope of this provision. It is argued, first, that certain forms of cultural expressions such as books, music, or food, even though they may be (re)produced through industrial processes, may fall under the scope of Article XX(f). Second, and most importantly, it is submitted that not all uncertainties concerning Article XX(f) can be resolved at once. This is due to the inherently fluid and ever-evolving nature of artistic, historic, and archaeological value attached to certain goods and to the need to leave enough space for crystallized rules to adapt to values which evolve over time.