The Formation and Development of the International Legal Protection of Cultural Property (original) (raw)
Related papers
The Applicable Law to Cultural Property
International Journal of Liberal Arts and Social Science, 2016
Importance of cultural assets for humanity, requires to be passed on to the next generations. This situation requires to physical protection along with its protection within the place it belongs. Unfortunately, cultural assets changed hands for centuries as legal or illegal ways, destroyed and destructed. Once in Emperor Times the cultural assets were moved from the colonies to the emperor centers and today it continues as illegal cultural assets trade. Therefore, precautions of protecting the asset in source country, are inefficient once the artifact is outside of the country, and cultural assets are facing the variety of procedures in different law systems in international platform. In this study, the applicable law to conflicts with foreign element regarding cultural assets which changing hands in the international area, will be examined. As is known, general principal in private international law, real rights to lex rei sitae (also called as lex situs) meaning the wherever the goods is that place law will be applied. This principal, is able to applied most legal systems today. So, is it that cultural assets should be bound to strict lex rei stae rule without an exception? It should be strongly noted that, due to the cultural assets are different than ordinary trade goods and the effect of international court decisions can be effective on illegal art trade, requires the handling of the applicable law in a different understanding.
Fordham International Law Journal, 1992
The central focus of this paper is a proposal for rebalancing protection of cultural property so as to take into account preservation of the cultural as well as property aspects of cultural property. Part I distinguishes between cultural and property aspects of cultural property and demonstrates how both aspects are important to an appropriate resolution of cultural property issues. Objects of cultural property cannot be stripped of their cultural significance. They are not merely items of property any more than children are the property of divorcing parents. Recognition of cultural significance is an integral part of determining the best means of protecting cultural property. This Part considers the property orientation of the generally accepted definition of cultural property. In addition, Part I considers subsidiary issues raised by the dichotomous nature of cultural property. Part II describes the current international legal regime for protecting cultural property and demonstrates the failure of this regime to give adequate consideration to the cultural aspect of cultural property. Part III identifies two schools of thought concerning cultural property. The first school of thought, usually identified as cultural internationalism, is primarily concerned with physical preservation of objects.2 This school articulates concerns in terms of property law principles. The arguments of acquisitive nations, 3 museums, collectors, and archaeologists, all of whom seek to protect their holding of or access to cultural property for aesthetic, scholarly, educative, or merely possessory purposes, generally belong to this school of thought. The property law principles they espouse include rights of title, possession, conquest, repose, and bona fide purchase. The second school of thought, usually termed cultural nationalism, is primarily concerned with the cultural significance of cultural property.4 Its arguments are often framed in terms of principles of human rights law. The demand is for cultural dignity and cultural self-determination. Arguments for repatriation of objects of cultural significance to source nations 6 or to peoples belong to this school of thought. This paper asserts that the disputes between these schools of thought are really disputes over which aspect of cultural property deserves greater legal protection. Although the common ground between these two camps is concern for preservation of objects of cultural significance, preservation means different things to different interests. Part IV proposes a new legal regime founded on the common ground between these schools of thought. This Part suggests two approaches to the problem of protection of cultural property working in tandem. The first is a reaffirmation of the preeminence of human rights principles in resolving cultural property questions. The second approach, from the model of environmental protection, addresses the problem by reflecting global concern. The proposal is for a program of transfers of funding and technology to protect the "best interests" of cultural property for the benefit of interested groups, as well as the world community. Part V presents an assessment of the effectiveness of the proposal in protecting both the cultural and property aspects of cultural property and the likelihood that the regime will be acceptable to the world community.
Protection Of cultural property under International Humanitarian Law: emerging trends
Revista de Direito Internacional, 2020
Cultural Properties holds the rich heritage and is a matter of pride for the entire mankind and is considered as property of mankind and does not belong specifically to any religion, group or state. Despite this the cultural property has been attacked and destroyed a lot of times either deliberately or unintentionally during war. The instances of destruction of cultural property has been there in past also and such cases are still increasing. The destruction of cultural property of course creates a sense of divide among people from different communities and nations and not just make chances of compromise between communities and nations impossible but it also lead to long term discrimination and hatred.The legal system related to protection of cultural property is mostly a soft law mechanism in which the implementation body and implementation system is missing and there are many laws which show the importance of cultural property during peacetime and also during war. This paper will ...
Customary International Law and the Rule Against Taking Cultural Property as Spoils of War
Chinese Journal of International Law, 2018
Many countries seek to regain lost cultural property that was taken as spoils of war during the nineteenth and early twentieth centuries. Some scholars, however, regard such claims as baseless in public international law of this period. This article carries out an intertemporal law analysis and argues that the rule against such plunder was indeed founded in the laws and customs of war in the eighteenth century, became well established in the nineteenth century, and further developed in the twentieth century. If the plundered works exist and are identifiable, restitution is the only remedy for violation of this rule. This article aims to provide the legal grounds for restitution claims and thus provide the first steps for victim States to regain their lost cultural property.
The International Law on the Protection of Cultural Heritage
IJASOS- International E-journal of Advances in Social Sciences
We present a comprehensive analysis of the concept of cultural heritage and the institutionalisation of its protection by the international law in various historical contexts of involved states, i.e., during peace, conflict, social and/or political crisis. Furthermore, we discuss the human dimension of the protection of cultural heritage at an international level under the public international law. In particular, we first investigate whether states remain central actors at national and international level as far as the protection of cultural property within their territory is concerned. Subsequently, we examine the limitations imposed on the action range of a state due to primary and secondary legislation of international organizations where the state participates. Apart from this form of external pressure on the state jurisdiction, we also examine whether the action range of a state is further limited by the action of individuals and groups. Furthermore, we discuss on the potential role of international human rights law in such situations, the interdependence between the protection of individuals and cultural goods as well as whether the individual is transformed into an active actor of international law.
There are new emerging trends in the International Law aiming at conservation of cultural property. The protection of cultural property first emerged in late 19th and 20th centuries. The requirement of conventions emerged for means of conducting war, attempting to make the warfare more humane, laid the foundation for the instruments in protecting cultural property. There is a doubt whether the existing international instruments for the protection of cultural property during armed conflicts sufficient. This is due to the technological advancements in the modern armed conflicts. The Hague Convention 1954 and its Additional Protocols (APs), Hague Regulations 1899 and 1907 and Geneva Conventions (GC) and the APs are the instruments discussed here. Furthermore, this paper advocates the enhancement of the implementation of existing legal instruments and about trending issues. In addition, the paper calls attention to the challenges faced by nations during an armed conflict referring to the issues related to military necessity in IHL. The destruction of cultural property directly affects the culture and heritage value of that nation or it can also be a universal loss. There can be brutal intentional in situations where, the warring party destroy symbolic good to underscore their historic claims for territory, such incidents can occur due the existing lacunae in the current legal instruments referring to military necessity. This article focuses on exploring the lacunae in the prevailing international legal system, elaborating the problematic consequences focusing on military necessity during armed conflict.
A Study on the Institutionalisation of the Protection of Cultural Heritage by the International Law
2017
We present a comprehensive analysis of the concept of cultural heritage and the institutionalisation of its protection by the international law in various historical contexts of involved states, i.e., during peace, conflict, social and/or political crisis. Furthermore, we discuss the human dimension of the protection of cultural heritage at an international level under the public international law. In particular, we first investigate whether states remain central actors at national and international level as far as the protection of cultural property within their territory is concerned. Subsequently, we examine the limitations imposed on the action range of a state due to primary and secondary legislation of international organizations where the state participates. Apart from this form of external pressure on the state jurisdiction, we also examine whether the action range of a state is further limited by the action of individuals and groups. Furthermore, we discuss on the potential...
Yearbook of International & European Union and Comparative Law, 2022
The protection of cultural heritage in our days is a subject of international criminal law given that the first sentences by international courts that paved the way for inserting asset protection as an autonomous and ad hoc crime into an international statute were those of the International Criminal Court (ICC). The polymorphism of protection needs is connected to the versatility which includes every legal asset to be protected and which arises from both domestic and international law. The cultural asset is characterized by both certain and generic attributes, such as immaterial or tangible, movable or immovable. The collateral damage caused during armed conflicts, the dangers that arise, the destruction of the illicit trafficking of works of art as part of what is called cultural heritage is an issue that requires the preservation of intangible cultural heritage. The destruction and impoverishment of cultural heritage also opens the way to punishment given the individual responsibility of the subject who destroys a protected asset, simultaneously highlighting the anthropocentric nature of the interest thus read. This is the panorama of the present paper which is based both on the doctrine and on the jurisprudence of the international courts of recent years helping us understand what kind of protection we need and what cultural protection means.
The Means for the Settlement of International Cultural Property Disputes: An Introduction
Transnational Dispute Management, 2020
International disputes over cultural property seem to be on the increase. The unfortunate increase in armed conflicts in areas which are rich in cultural heritage provide fertile ground for plunder and pillaging. Later, in peacetime, this may prove instrumental in giving rise to international disputes over stolen and trafficked pieces of cultural property. At the same time, a greater number of disputes in the field may also be taken as a positive sign; namely, as an indicator of successful criminal investigations leading to new discoveries of artworks stolen in the past and illegally exported. Such discoveries are often the outcome of enhanced international cooperation between domestic investigation agencies.