New principles for cooperation in the mutual protection and transfer of cultural material.

Author:Paterson, Robert K.
Position:International Cultural Law: Looking Back and Looking Ahead - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law

The history of art has recently been described by Holland Cotter of the New York Times as "in large part, a history of theft." Contemporary events tend to confirm this assertion as ethnic conflict--often involving the use of force--continues to physically endanger cultural artworks and feed a healthy international demand from collectors for unprovenanced material. Theft, however, is an elusive term and, often, one person's sense of irreparable loss is another's justification for prior wrongdoing. That the background to these events may have occurred over decades or even centuries ago only complicates sorting out the factual and legal aspects of claims.

What can be empirically supported is the growth in the number of claims for the return of cultural material from countries, institutions, and individuals by a variety of claimants, including states themselves, as well as ethnic groups and individuals. These claims have often thrown historical grievances into sharp relief, as well as presenting thorny issues for lawyers involving, inter alia, limitation periods, sovereign immunity, indigenous rights, the application of foreign laws, and the interpretation of treaties and other international agreements. Such problems have elicited diverse initiatives and outcomes, but there remains a sense that no completely adequate single approach has emerged that would be suitable to resolve many types of claims.

UNESCO has been responsible for the largest number of initiatives to deal with the types of aforementioned problems summarized. The most important of these are its 1970 Convention of the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1995 International Institute for the Unification of Private Law (UNIDROIT) Convention on Stolen and Illegally Exported Cultural Objects. The former now has 109 signatories and has been implemented by several countries to provide a basis in domestic law to effect the return of stolen or illegally exported cultural property.

Most countries reject the recognition and enforcement of foreign cultural property export controls on the ground that they are public laws. The two conventions just mentioned attempt to override this legal impasse with the aim of reducing illicit trafficking. Most experts, however, doubt that they have had a significant impact in that regard.

Sometimes domestic courts have been able to effect the return of looted objects, such as...

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