Regulation of Cultural Heritage and Investment Promotion: A critical Analysis of BITs of Sri Lanka

Abstract

International investment law and international cultural law are two distinct fields of international law that developed independently. Nonetheless, collisions are significantly more common despite the two regimes' synergy being evident in many fields, including cultural tourism and the sustainable use of cultural heritage. Collisions between two paradigms could result in a violation of investor rights guaranteed by investment treaties on the one hand and a breach of the duty to conserve cultural heritage on the other. Reconciliation of such conflicts becomes more problematic if investment law is perceived as a self-contained regime and not as a part of public international law. In this backdrop, the purpose of this paper is to examine how bilateral investment treaties (BITs) respond to challenges posed by economic globalization on cultural heritage, particularly relating to Sri Lanka. It is vital to assess this linkage at a time when the government has decided to expand Galle Harbour, located in the world heritage site of Galle, to include a leisure hub to attract more investment opportunities. The study aims to map all new generation BITs and all BITs of Sri Lanka to analyze their linkage with cultural heritage, focusing more on the preamble, expropriation clause, MFN principle, FET principle, exception clause, and dispute settlement clause. Finally, the paper will offer concrete ways in which the protection of cultural heritage can be reconciled with investment promotion in Sri Lanka, focusing more on systemic integration theory, explicit reference theory, and counterclaims.