Customary International Law and the Rule Against Taking Cultural Property as Spoils of War (original) (raw)
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University of Pennsylvania Journal of International Law, 2021
Many current disputes over cultural property resulted from war confiscations during the nineteenth-century international warfare. India demands the return of the Kohinoor diamond from the United Kingdom while China attempts to recover copper animal heads seized by the British and French armies. Do these states have legal rights under customary international law (CIL) to recover looted artifacts today when current conventions are not applied? Scholars often argue that such claims have no basis in CIL. However, this article questions their conclusions because they retroactively apply the current CIL-making approach to determine whether any CIL rules existed in the nineteenth century. Instead, this article uses the intertemporal law approach to first identify the contemporaneous CIL-making criteria in the seventeenth through twentieth centuries, and then apply these tests to trace the evolution of the CIL rules against wartime looting of cultural property. I argue that CIL has prohibited such practices and provided restitution as the primary remedy in circumstances of violations since the Please do not circulate it 2 nineteenth century. This right to restitution has been established as a general rule that should be applied to all states rather than only Western "civilized nations." Moreover, the passage of over 150 years since the time of removal will not inhibit claims for restitution, so long as the plundered artifacts still exist and are identifiable. This article provides an original interpretation of CIL-making in the law of war in respect of cultural property and convincingly paves the legal grounds for claiming historically looted cultural property today.
Return of Cultural Property to Countries of Origin and the Emerging Issues
Law and Policy Thoughts in Nigeria, 2018
Cultural property symbolises a nation’s identity and culture. The Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation (ICPRCP) at its first session declared that dispersal of cultural property terminates the cord that links the present generation to their forbears and prevents the present generation from knowing the specific qualities that distinguish them from others. The creators of these cultural objects are challenged to go after what rightfully belongs to them in order to showcase what they have to offer the world as a touchstone for means of production and life style. Cultural property in the context of this article is as defined in the 1970 UNESCO Convention with its categories reiterated in the 1995 International Institute for the Unification of Private Law (UNIDROIT) Convention. ‘Return’ may refer in a wider sense to restoration, reinstatement and even rejuvenation and reunification. Union de l’Inde contre Credit Agricole Indosuez (Suisse) SA discusses this. Restitution refers to war pillage and stolen property or any unlawful situation. In Iran v Barakat Galleries, the English court ordered the restitution of several very old (at least 2000BC) chlorite artefacts from Jiroft in Iran. To Kowalski, ‘restitution’ relates to takings in wartime and belligerent occupation. The holocaust represents cases of restitution. The UNESCO’s Intergovernmental Committee (IGC) Guidelines for the use of the Standard Form Concerning Requests for Return or Restitution has it that “restitution” should be used in cases of illicit appropriation.” Under the International Conventions on return and restitution of cultural property, Return would be based on Article 7b of the UNESCO Convention and on Chapter III of the UNIDROIT Convention. Restitution is based on Art. 7b of the UNESCO Convention and on Art. 3 of the UNIDROIT Convention. This makes the terminology on the topics ‘return and restitution’ to be clear and unified. ICPRCP was set up to make it possible for countries whose cultural heritage has been dispersed to gather representative collections of the heritage through the return of at least some of the works that have been lost. The ability of those in possession of dispersed objects to return them to their creators would depict an act of fairness, unity and empathy towards the importance of the objects to the creators. The extent of participation of African countries in ensuring that their patrimony is preserved for the unborn is noteworthy hence the reason for this article. This paper will be divided into six parts. The first being this introductory. The second briefly considers Africa and cultural property. The third discusses the ICPRCP and its involvement in preventing illicit trafficking. The fourth discusses the participation of African states in the work of ICPRCP. The fifth reflects on probable reasons for African states very poor state of participation in the work of ICPRCP. The sixth part is the conclusion. Keywords: Sub Saharan African States; Participation; Intergovernmental Committee; Return and Restitution; Cultural Property.
Journal of the History of International Law / Revue d’histoire du droit international
This article provides a new narrative for the history of cultural heritage law and seeks to contribute to current legal debates about the restitution of cultural objects. The modern protection laws for cultural objects in domestic and international law evolved in the 19th and 20th century. The article makes three new arguments regarding the emergence of this legal regime. First, ‘civilisation’ was a main concept and colonialism an integral part of the international legal system during the evolution of the regime. The Eurocentric concept of civilisation has so far been an ignored catalyst for the international development of cultural heritage norms. Second, different states and actors used cultural heritage laws and their inherent connection to the concept of civilisation for different purposes. Third, the international legal system of cultural heritage partly still reflects its colonial roots. The current restitution discussions are an outcome of this ongoing problematic legal const...
The Formation and Development of the International Legal Protection of Cultural Property
Global Journal of Cultural Studies, 2022
The article considers the formation and evolution of the international legal protection of cultural property from ancient times to the present. The purpose of the article is to identify the prerequisites and features of each historical period in the development of international law in the context of the international legal protection of cultural property, as well as to systematize the relevant international legal acts. The authors provide their own periodization of the development of international legal protection of cultural property. It is concluded that the initial stage of codification of the international legal protection of cultural property is directly related to the development of the rules and customs of warfare.
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.
Armed conflicts and the repatriation of cultural property: global democratic challenges
Revista Confluências Culturais, 2021
Claims over the repatriation or restitution of cultural property, particularly property taken as war trophies, have emerged in recent decades as one of the major democratic challenges in the field of Cultural Heritage. This paper discusses two specific cases involving the repatriation of cultural property taken in war contexts: one in the northern hemisphere, from World War II, and another in the southern hemisphere, involving he Paraguayan War. Through an interdisciplinary research project, mobilizing the fields of Cultural Heritage, History and Law, based on documentary and bibliographic sources, this paper seeks to understand the different discourses, memories and values activated by those who want the return of those cultural properties and also by those who advocate that they should remain where they currently are. As a result, it was possible to state that different values are attributed to cultural property, which are activated through power struggles in the political field in defense of specific interests of the parties involved, which culminates in constant (re)significations of cultural heritage in the present time.
Restitution of art and cultural objects and its limits
2013
Art and cultural objects have a complex nature and status. A legal approach cannot escape having to state which objects come within the scope of the definition, but an objective legal definition in abstracto is difficult to provide. Because the flows of licit and illicit objects are so intermixed, both the legitimate and underground art markets are implicated in the trade involving these objects. Global legal diversity further complicates the distinction between the licit and the illicit trade. This article takes stock of restitution and suitable dispute settlement mechanisms against this backdrop. Restitution processes have become more openly policy-oriented, and the meaning of 'restitution' now extends to overcoming the legal obstacles in the way of return. Law can provide the framework for negotiation and dispute settlement in many cases, but the ethical dimension is a particularly powerful agent for restitution of Nazi spoliated art and human remains.