Claims to cultural property under international law

Abstract

During the course of history, men have removed works of art from their original location, both in war and in peacetime. For several thousands of years, there have also been protests against such behaviour. Only recently, however, attention has been paid to claims regarding the restitution and return of art treasures. This thesis intends to give, in the first place, a picture of the historical developments in this field. It will discuss how modem cultural property protection law is based upon theories that have progressed and evolved over centuries. The first legal principles devoted to cultural property protection developed within the context of regulating warfare. These initial agreements codified the idea that the destruction or acquisition of cultural property during armed conflicts was not a legitimate wartime goal. Subsequently the definition of the term "cultural property" will be discussed, and outlining how varying definitions of cultural property led to lack of uniformity in cultural property protection laws. Regrettably, this lack of uniformity can only aid smugglers by allowing them to hide or sell illegally removed cultural property in jurisdictions with limited cultural property protection laws. This thesis also deals with the question of how individual nations view claims regarding restitution and return of cultural property. Chapter 3 discusses the European approach and stresses the fact that there is inconsistency in how the United Kingdom, the Netherlands, Italy and Germany approach the problem. Whilst the United Kingdom and the Netherlands are against the return of anything if it can possibly be avoided, Italy and Germany appear to support demands for restitution. It is thus clear that state practice is still inconsistent in this field. The European approach is in stark contrast to that of the United States and Canada. Chapter 4 outlines both United States and Canadian measures to stem the flow of illegally removed cultural property as well as to return them to their original location. This has taken the form of ratification of international agreements, execution of bilateral treaties and the passing of narrowly tailored domestic statutes. In addition to these measures, the courts of the United States, at the behest of federal prosecutors, expanded the applicability of an already existing law, the NSPA, to prevent the entrance of illegally removed cultural property. The United States and Canada have in the process set the rest of the world a fine example with their strenuous efforts to return cultural property to its original location, when this can be proved to have been illegally removed. This thesis also deals with how modem international agreements have impacted on the demands for restitution of cultural property to its original location.