Cultural Property in Cross-Border Litigation: Turning Rights into Claims (Schriften zum Kulturgüterschutz / Cultural Property Studies)

The legal discipline of cultural property law is a fairly young one compared tothe main areas of law practiced throughout the legal community. Owing to thegrowing awareness of the value and meaning of art and cultural heritage for hu-mankind, however, it is becoming a fast evolving subject with a constant flow ofnew legislation being enacted both nationally and internationally. The monetaryvalue of art and archaeological artefacts has experienced an exponential growthin the past three decades and so has the illegal market in such objects. The re-cent conflicts in the Middle East have curbed the illicit trafficking in archaeolog-ical objects from the region, where plunderers are said to control archaeologicalsites and the export of cultural heritage.Once however, art or cultural property has found its way onto the black mar-ket, claims for its return to the original owner have proven to fail, notwithstandingthe vast body of domestic and international laws. Litigation is often complex, bothin terms of procedure and substance. I t involves a mix of domestic civil and crim-inal law, European Human Rights and EU law, Private International Law as well a sPublic International Law. Successful litigation, however,would increase the aware-ness of illegal dealings with such goods. Returns of movable antiquities to itssource countries could help diminish the destruction of archaeological contextcaused by looting, if they succeed in serving as a deterrent to prospective purchas-ers and thereby providing a disincentive to looters and illicit traffickers. In supportof this contention, this book upholds the view that the return of illegally excavatedand exported cultural objects i s an imperative based on legal argument.The research consists of two parts.The first part comparatively delineates differ-ent means of acquiring or retaining rights in cultural objects. They may be propertyrights, interests that equal property or interests that do not count as property, butserve as a mechanism to protect movable cultural heritage. The second part of thethesis will be devoted to investigating and delineating ways to enforce interests i ncultural objects and to turn such interests into claims.The thesis that served as a breeding ground for this book has been admittedas a PhD research project at King’s College London in 2007.The upgrade defensetook place in 2009.The project was further accepted as a doctoral thesis at Hum-boldt University Berlin in 2010 and jointly supervised by Prof. Norman Palmerand Prof. Stefan Grundmann. The defense took place at Humboldt Universityin 2013. The main manuscript has been completed with the defense of the doc-toral thesis, however, several amendments had to be undertaken until its actualpublication. This includes amongst others EU Regulation 1332/2013 concerningrestrictive measures in view of the situation in Syria, which was enacted as a re-sult of the exponentially increasing illegal trafficking with Syrian cultural herit-age following the intensification of political upheaval in the Middle East as wellas recent case law on the enforcement and justiciability of claims involving cul-tural objects. 41x-Aa5zr0L 文化财产的跨境诉讼问题 德古伊特2015年版 Contents List of Abbreviations Chapter 1. Introduction § 1. The Illicit Trade in Cultural Objects – A Scope of the Problem I. General Remarks II. Cross-Border Recovery of Misappropriated Cultural Property 1. The Principle of Justiciability 2. Misappropriated Cultural Objects in Litigation a. Attorney General of New Zealand v. Ortiz b. Government of Iran v. Barakat Galleries Ltd § 2. Objectives of the Book and Research Task § 3. Terminology and Delimitation I. Movable Cultural Property II. Antiquities III. Archaeological and Historical Context IV. Source Nations and Market Nations § 4. The Structure of the Book Part I: Rights to Cultural Objects Chapter 2. Sovereign Rights to Movable Cultural Objects § 1. Introduction § 2. Mechanisms of Acquiring Rights to Cultural Objects I. Property Rights on the Ground of Ownership Declarations 1. Umbrella Statutes 2. Conditional Ownership Declarations 3. Mixed Law of Finders and State Ownership Approach a. The UK Treasure Act 1996 – A Market Nation’s Protection Scheme b. Germany: The “Schatzregal” 4. Dual Regime between Finders Law and Cultural Property Law 5. Reporting Duties and Rewards 6. The Quality of the Proprietary Title a. The Elmali Hoard-Case b. Turkish Republic v The City of Basel c. Government of Peru v Johnson d. United States v McClain II. Property Rights on the Grounds of an Immediate Right of Possession III. Property Rights on the Ground of Export Legislation 1. The Ambit of Export Legislation a. No Export Controls b. Export Embargos c. Classified National Heritage 2. Confiscatory Laws a. Confiscatory Ownership ex lege (1) Automatic Forfeiture (2) Moment of Forfeiture b. Confiscatory Ownership based upon an Administrative Act 3. Export Laws Granting a Right of First Refusal a. Compulsory Purchase Offer (1) The Waverley System (2) The Dutch System b. Optional Purchase Offer 4. Export Laws not granting Property Rights 5. Export Restriction and EU Law IV. Property Interests on the Ground of Pre-Emption Rights 1. Pre-Emption Rights as a Mechanism to Acquire Fortuitous Finds 2. Pre-Emption Rights as Means of Acquiring Property from Private Collectors a. Option to Purchase b. Right of First Refusal c. Right of First Negotiation 3. The Proprietary Nature of Options and Pre-Emption Rights 4. Pre-Emption Rights and the ECHR 5. Pre-Emption or Expropriation § 3. Mechanisms to Retain Ownership of Cultural Objects in the Public Domain I. Objects Res Extra Commercium II. Movable Cultural Objects dedicated for Public Use 1. The “öffentliche Dienstbarkeit” 2. The “dominio eminente” III. Restrictions on Disposal 1. De-accession Provisions a. Arising from Trust b. Arising from Museum Governing Statutes 2. Exceptions to the Rule a. Through Act of Parliament b. Through Voluntary Surrender of Title § 4. Conclusion for Chapter 2 Chapter 3. Title to Cultural Objects under the Private Law of Finds § 1. Introduction § 2. The Common Law of Finders I. Superincumbent Finds 1. Priority of Possession 2. The Manifest Intention-Test II. Subsoil Finds III. The Trespassing Finder IV. The Employee versus his Master V. Finder Obligations VI. Concluding Remarks to the Common Law of Finders § 3. The Civilian Law of Finders I. The Acquisition of Title in General II. Master versus Servant III. Finder versus Occupier IV. Fortuitously Discovered Treasure 1. The Allocation of Title based on Equitable Division 2. The Conflict between Civil and Public law 3. Treasure Acquired through Trespass V. Concluding Remarks to the Civilian Law of Finds § 4. Excursion: Finders Law as a Means of Protecting Antiquities I. The Need for an Incentive to Return Archaeological Finds into Circulation II. The Protection of Archaeological Data through the Portable Antiquities Scheme § 5. Conclusion to Chapter 3 Part II: Turning Rights into Claims Chapter 4. International Law with Regard to the Recovery of Cultural Objects § 1. Introduction § 2. European Union Initiatives I. Council Regulation (EC) No 116/2009 II. Council Directive 93/7/EEC III. Iraq Council Regulation (EC) No 1210/2003 IV. Syria Council Regulation (EU) No 1332/2013 § 3. Uniform Law International Instruments I. Treaty of Washington 1935 II. The Hague Convention 1954 1. First Protocol of the 1954 Hague Convention 2. Second Protocol of the 1954 Hague Convention IV. The 1970 UNESCO Convention 1. The Principles of the Convention 2. Implementing the Convention into National Law a. Bilateral Approach (1) United States of America (2) Switzerland b. Multilateral Approach (1) Germany (2) Netherlands c. UK Implementation V. The 1995 UNIDROIT Convention 1. Principles of the Convention 2. Weaknesses Preventing Implementation VI. Commonwealth Scheme for the Protection of the Material Cultural Heritage 1993 VII. The 2011 UNESCO and UNIDROIT Model Provisions on State Ownership of Undiscovered Cultural Objects § 4. Conclusion Chapter 5. Choice of Law Methodology in International Cultural Property Cases § 1. Introduction § 2. Acquisition of Title to Stolen Property I. Jurisdictions favouring the Original Owner II. Jurisdictions favouring the Good Faith Acquirer III. Moderate Jurisdictions § 3. The Application of the Lex Situs and its Consequences § 4. Legal Alternatives for Disputes involving Cultural Property I. The Law of the Closest Connection II. Renvoi III. Lex Situs Originis 1. The Resolution of the “Institute de Droit International” 2. Art. 12 of the EC Directive 93/7 EEC 3. Belgian Code on PIL of 16 July 2004 IV. The Proposed Choice of Law Rule 1. Characterisation of the Object 2. Protection of the Good Faith Purchaser 3. The Good Faith – Test 4. Reversed Burden of Proof 5. ARule on Discovery 6. The Nationality of the Object a. The Closest Connecting Factor b. Problematic Constellations (1) Orphaned Objects (2) State Succession (3) Subjective Cultural Importance c. Sharing Agreements as an Alternative Method § 5. Conclusion to Chapter 5 Chapter 6. Cross-Border Enforcement and Justiciability in a Comparative Perspective § 1. Introduction § 2. International Resolutions on the Justiciability of Foreign Public Law I. The Wiesbaden Resolution 1975 II. Resolution of the “Institute de Droit International” III. Resolution adopted by the International Law Association in 1988 § 3. England and Wales I. Enforcement: Prerogative Claims to Cultural Objects 1. Acta Jure Gestionis and Acta Jure Imperii a. Attorney General of New Zealand v Ortiz b. Iran v Barakat: First Instance Decision 2. ‘Penal laws’ within the Context of Dicey Rule 3 (1) 3. ‘Other Public Laws’ within the Context of Dicey Rule 3 (1) a. Unjusiticiable Public Laws – A Conundrum b. The Adoption of the ‘Governmental Interest’ – Test II. Recognition: Patrimonial Claims to Cultural Objects 1. The Recognition of Claims according to the Doctrine of Vested Rights a. Iran v Barakat – Court of Appeal Decision b. The Medici-Archives c. City of Gotha v Sotheby’s 2. Recognition based on a Possessory Title a. The Common Law Action in Conversion b. Immediate Right of Possession as Title under English Law 3. Recognition based on Confiscatory Legislation a. Possession at the Time of the Confiscatory Act b. Lack of Possession at the Time of Confiscatory Act III. Cross-Border Enforcement on the Ground of Public Policy 1. The Notion of Public Policy 2. Public Policy and its Function as a Correction Tool a) Positive Public Policy b) Negative Public Policy c) Transnational Public Policy 3. Cultural Property as a Policy Consideration IV. Reflections on England and Wales § 4. The U.S. Approach I. The McClain-Doctrine II. McClain Revisited – United States v Schultz III. Civil Recovery on the Grounds of McClain – An Antique Platter of Gold IV. Reflections on U.S. Law § 5. The German Approach I. General Rules II. Rules on Cross-Border Enforcement and Justiciability 1. The Imprint Theory 2. Cross-Border Enforcement on the Ground of Public Policy 3. Cross-Border Enforcement Jurisprudence a) The Egyptian Sarcophagus-Case b) The Greek Coins-Case 4. Recognition within the Scope of the Immorality of Conduct a) The Nigeria-Decision b) Three Phrygian Offering Cups and Two Byzantine Incense Burners III. Reflections on German Law § 6. The Swiss Approach I. Swiss Federal Act on Private International Law 1987 II. India v Crédit Agricole Indosuez III. Reflections on Swiss Law IV. Conclusion to Chapter 6 Summary Bibliography Annex This Thesis Comparatively Investigates Into The Cross-border Enforcement Of Claims To Misappropriated Cultural Objects Initiated By States. It Identifies And Categorises Sovereign Rights In Cultural Property, Focusing On Portable Antiquities, And Discusses The Legal Mechanisms To Successfully Implement These Rights In Foreign Courts. The Results May Be Used By Government Officials, Museum Officials, Lawyers, Art Historians, Archaeologist, Art Dealers, Academics. Comparative Analysis Of National Public Law And Civil Law In Respect Of Title To Antiquities. Elaboration On The Justiciability Of Claims Based On International Treaties, International Private Law And Case Law In Uk, Usa, Germany, Switzerland--unedited Summary From Book Cover. Sovereign Rights To Movable Cultural Objects -- Title To Cultural Objects Under The Private Law Of Finds -- International Law With Regard To The Recovery Of Cultural Objects -- Choice Of Law Methodology In International Cultural Property -- Cross-border Enforcement And Justiciability In A Comparative Perspective. Mara Wantuch-thole. Originally Presented As The Author's Thesis (doctoral)--king's College, London, 2010 And Humboldt-universität, Berlin, 2013 Includes Bibliographical References And Summary. This thesis comparatively investigates into the cross-border enforcement of claims to misappropriated cultural objects initiated by states. It identifies and categorises sovereign rights in cultural property, and discusses the legal mechanisms to successfully implement these rights in foreign courts. The results may be used by government officials, museum officials, lawyers, art historians, archaeologists, art dealers, academics. * Comparative analysis of national public law and civil law in respect of title to antiquities * Elaboration on the justiciability of claims based on international treaties, international private law and case law in UK, USA, Germany, Switzerland

This thesis comparatively investigates into thecross-border enforcementof claims to misappropriated cultural objects initiated by states. It identifies and categorises sovereign rights in cultural property, and discusses the legal mechanisms tosuccessfully implementthese rights in foreign courts. The results may be used by government officials, museum officials, lawyers, art historians, archaeologists, art dealers, academics.

This thesis comparatively investigates into the justiciability of claims to misappropriated cultural objects initiated by states. It identifies and categorises sovereign rights in cultural property, focusing on portable antiquities, and discusses the legal mechanisms to enforce these rights in foreign courts. The results may be used by government officials, museum officials, lawyers, art historians, archeologist, art dealers, academics