The Oxford Handbook of International Cultural Heritage Law (Oxford Handbooks)

"This Handbook sets out and assesses the international legal framework governing the protection of cultural heritage. Cultural heritage is frequently not bounded by national territory and can only effectively be protected through international cooperation. This is a primary driving force of contemporary multilateral, regional and bilateral initiatives, including legal measures. Accordingly, the handbook is primarily focused on public international law, but it embraces also aspects of private international law and comparative law. It analyses the substance of cultural heritage protection and explores its links with other areas of public and private international law, as well as the ways in which cultural heritage law is contributing to the development of international law itself. The book concludes with an examination of the implementation of cultural heritage law and of regional approaches. It reflects the diversity of developments in almost every field of international law which is leading to this specialist area of law, and provides an overarching rationale for understanding and teaching cultural heritage law as a coherent body of law with key principles and practices. The book is designed in such a manner to enable a reader, whether it be a practitioner, policymaker, teacher or student, to pick and choose according their individual needs"-- Provided by publisher Cover INTERNATIONAL CULTURAL HERITAGE LAW Copyright Contents List of Abbreviations Table of Cases Table of Legislation List of Contributors Chapter 1 Introduction 1. Introduction 2. Defining Cultural Heritage 3. Whose Heritage? 4. Towards International Cultural Heritage Law PART I HISTORICAL OVERVIEW Chapter 2 Intellectual CooperationOrganisation, Unesco, And The Culture Conventions 1. Introduction 2. Intellectual Cooperation Organisation 2.1 International Regime of Antiquities and Excavations 2.2 Protection of National Artistic and Historical Treasures 2.3 Folk Arts and Traditions 2.4 Protection of Monuments and Works of Art in Time of War 3. United Nations Educational, Scientific and Cultural Organization 3.1 Protection of Cultural Property in the Event of Armed Conflict 3.2 World Heritage 3.3 Regulation of Archaeological Sites and Transfer of Cultural Objects 3.4 Safeguarding Intangible Cultural Heritage and Diversity of Cultural Expressions 4. Conclusion PART II SUBSTANTIVE ASPECTS Chapter 3 Cultural Heritage and International Humanitarian Law 1. Introduction 2. Prefatory Clarifications 3. The Conventional and Customary Corpus 3.1 Historical Background 3.2 Conventional International Humanitarian Law 3.2.1 The 1954 Hague Convention and Its First and Second Protocols 3.2.2 General Multilateral Treaties on International Humanitarian Law 3.3 Customary International Humanitarian Law 4. Substantive Obligations 4.1 Customary International Law and the 1954 Hague Convention 4.1.1 Attacks against Cultural Property or Objectives in Its Vicinity 4.1.2 Destruction of or Damage to Cultural Property under Own Control 4.1.3 Use of Cultural Property or Its Immediate Surroundings 4.1.4 Dangers to Cultural Property Resulting from Military Operations 4.1.5 Misappropriation and Vandalism of Cultural Property 4.1.6 Measures Specific to Cultural Property in Occupied Territory 4.2 The 1954 Hague Convention Only 4.2.1 Safeguarding of Cultural Property 4.2.2 Services or Specialist Personnel within Armed Forces 4.2.3 Respect for Personnel Engaged in the Protection of Cultural Property 4.3 The Second Protocol to the 1954 Hague Convention Only 4.3.1 Archaeological Excavations in Occupied Territory 4.3.2 Alteration to or Change of Use of Cultural Property in Occupied Territory 4.3.3 Immunity of Cultural Property under Enhanced Protection 4.4 1977 Additional Protocols I and II Only 5. Ancillary Rules 5.1 Distinctive Marking of Cultural Property 5.2 Military Measures and Dissemination 5.3 Penal Measures 5.4 Cooperation and Assistance of States Parties 6. The Institutional Framework 7. Enforcement 7.1 State Responsibility 7.2 Individual Criminal Responsibility and Consequent Reparations 8. Conclusion Chapter 4 Intentional Destruction of Cultural Heritage 1. Introduction: Intentional Destruction of Cultural Heritage—a Scourge of Human History 2. Mens Rea of Intentional Destruction of Cultural Heritage 3. Written Rules of International Law Concerning Intentional Destruction of Cultural Heritage 4. Intentional Destruction o f Cultural Heritage as a War Crime 5. Intentional Destruction of Cultural Heritage as a Crime against Humanity 6. Intentional Destruction ofCultural Heritage as Evidence of the Intent to Commit Genocide 7. Intentional Destruction of Cultural Heritage as a Violation of Human Rights 8. Intentional Destruction of Cultural Heritage as Offence against Humanity as a Whole 9. The UNSC and Intentional Destruction of Cultural Heritage as Threat to International Peace and Security 10. Prosecution of Individuals Responsible for Intentional Destruction of Cultural Heritage 11. Intentional Destruction of Cultural Heritage and State Responsibility 12. Conclusion: Prohibition of Intentional Destruction of Cultural Heritage under Customary International Law Chapter 5 International Criminal Law and the Protection of Cultural Heritage 1. A Variety of Approaches to the Protection of Cultural Heritage through International Criminal Law: The Civilian Use, Cultural Value, and Human Dimension Rationales 2. Acts against Cultural Property as War Crimes 2.1 The Origins of the Civilian-Use/Cultural-Value Divide and Its Endurance in International Instruments Dealing with Individual Criminal Liability 2.1.1 The Geneses of the Two Approaches 2.1.2 The Incoherent Development of Rules Penalizing Acts against Cultural Property 2.2 The Civilian Use/Cultural Value Divide in the Comparison of the ICC Statute and Protocol II to the 1954 Hague Convention 2.2.1 The Definition of Offences 2.2.2 The Cultural-Value Approach Making Its Way through the Jurisprudence of ICTs 2.2.2.1 Case Law of the ICTY 2.2.2.2 Case Law of the ICC 3. Acts against Cultural Property as Crimes against Humanity 3.1 The Lack of a Specific Definition of the Crime of Cultural Persecution and the Developments of ICT’s Case Law 3.2 ICTY Case Law on the Crime of Persecution 4. The Missing Piece: Cultural Genocide 4.1 ICTY Case Law on the Mens Rea of Genocide 4.2 A Case Study: ‘Cultural Genocide’ in Cambodia under the Khmer Rouge Regime 5. Harmonizing the Prosecution of Crimes against Cultural Heritage Chapter 6 The Responsibilities to Protect Cultural Heritage and Prevent Cultural Genocide 1. Introduction 2. The Responsibility to Protect Persons 3. The Extension of R2P to Cultural Heritage 3.1 Theory 3.2 Safe Havens 3.3 Cultural Protected Zones 3.4 Two, but not Four, Well-established Concerns or Targets of R2P 4. Cultural Genocide and Cultural Cleansing 4.1 An Overview 4.2 Historical Examples 4.2.1 From Rome to North America and Australia 4.2.2 The Holocaust 4.2.3 The Yugoslav Civil War 4.3 The Law Today and Its Discontents 4.4 Ethnic and Cultural Cleansing 4.5 Culturecide 4.6 Other Legal Issues: The Iraq and Syria Conflicts 5. Moving Forward Chapter 7 Cultural Heritage and Disasters 1. Introduction 2. The Lack of a Specialist ICHL Instrument to Address Disaster Scenarios 3. Disaster Risk Reduction and the Protection of Cultural and Natural Heritage 3.1 Assessing the Legal Relevance of International Cultural Heritage Law Instruments for DRR Activities 3.2 The Influence of International Disaster Law Paradigms in the Protection of World Heritage Sites 4. The Cross-Fertilization between International Disaster Law Instruments and International Cultural Heritage Law Ones for the Protection of Cultural Heritage through DRR Activities 5. Relief and Recovery Phases and the Safeguard of Cultural and Natural Heritage 6. Concluding Remarks: The Need for Increased Cross-Fertilizations between International Disaster Law and International Cultural Heritage Law Chapter 8 Cultural Heritage, Transitional Justice, and Rule of Law 1. Introduction 2. New International Order 2.1 League of Nations, ICO, and Moral Disarmament 2.2 United Nations, UNESCO, and Intellectual Solidarity 3. Post-conflict and Transitional Justice 3.1 Justice and Combatting Impunity 3.1.1 Accountability of Perpetrators 3.1.2 Serious Crimes under International Law 3.1.3 Amnesties and Vetting 3.2 The Right to Truth 3.3 Right to Remedy and Reparation 3.3.1 Right to Remedy 3.3.2 Right to Reparation 3.3.2.1 Restitution 3.3.2.2 Compensation and Rehabilitation 3.3.2.3 Satisfaction 3.3.2.4 Guarantees of Non-recurrence 4. Sustaining Peace 5. Conclusion Chapter 9 Theft and Illegal Excavation: Legal Principles for Protection of the Archaeological Heritage 1. Introduction 2. The International Market in Antiquities 3. State Control over Archaeological Artefacts 3.1 Control over Archaeological Excavation and Artefacts 3.1.1 Control over Archaeological Exploration and Excavation 3.1.2 Control of the Market and Export 3.2 State Ownership of Antiquities 3.3 Recognition of State Ownership in Foreign Courts 3.3.1 Foreign State Ownership in US Courts 3.3.2 Recognition of State Ownership in UK Courts 3.3.3 Comparison of the US and UK Approaches 3.3.4 Model Provisions on State Ownership of Undiscovered Cultural Objects 4. International and Regional Legal Instruments Affecting the Status of Archaeological Artefacts 4.1 International Conventions 4.1.1 The 1995 UNIDROIT Convention 4.1.2 The 1970 UNESCO Convention 4.2 Models of Implementation of the 1970 UNESCO Convention 4.2.1 Reciprocal Restrictions 4.2.2 Bilateral Agreements 4.2.3 Hybrid Approach 4.2.4 Designation Requirement 4.3 United Nations Security Council Resolutions 5. Conclusion Chapter 10 Grasping The Nettle of Illicit Export, Import, And Transfer Of Ownership of Cultural Objects 1. Introduction 2. Second World War Trigger 3. Laying the Foundation of Illicit Trafficking in Cultural Property 4. Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 5. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 6. A Lack of Synergy 7. UNIDROIT Convention 8. Resolving Legal Conundrums 9. UNESCO–UNIDROIT Model Provisions on State Ownership of Cultural Objects 10. Intergovernmental and Non-governmental Organizations 10.1 Introduction—beyond Laws and Regulations 10.2 UNO 10.3 UNODC 10.4 UNESCO 10.5 Subsidiary Committee to the Meeting of States Parties to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 10.6 ICOM 10.7 Interpol 10.8 National Cultural Heritage Police Units 10.9 World Customs Organization 10.10 The European Union 11. Uniform Standard for Documentation and Identification 12. UNESCO–WCO Model Export Certificate for Cultural Goods 13. International Committee of the Blue Shield 14. Networking 15. Cooperative Network for the Protection against Trafficking in Cultural Property 16. Code of Ethics 17. Conclusion Chapter 11 World Cultural Heritage 1. Overview 2. Identification and Delineation of World Cultural Heritage 3. Determination of ‘Outstanding Universal Value’ 4. The Process of Inscription in the World Heritage List 5. World Heritage in Danger 6. Deletion from the World Heritage List 7. Reporting on the State of Conservation of World Heritage Sites 8. International Assistance 9. The Impact of the WHC on International Law 10. Conclusion Chapter 12 Landscape as Cultural Heritage 1. Introduction 2. The Etymology of ‘Landscape’ and Its Conceptualization as Heritage 3. Early International Protection of Landscape 3.1 UNESCO Instruments 3.2 Council of Europe Instruments 4. Landscape as World Heritage 4.1 Natural Landscapes and the First Twenty Years 4.2 Cultural Landscapes 4.3 Problematizing Landscapes as World Heritage 4.4 The Impact of World Heritage on Global Landscape Governance 5. The European Landscape Convention 5.1 Origins of the ELC 5.2 Paradigm Shift: From Landscape as Heritage to Landscape as Public Space 5.3 Problematizing the ELC from a Legal Perspective 6. Concluding Remarks Chapter 13 Underwater Cultural Heritage 1. Introduction 2. Access 3. Jurisdiction 4. UNCLOS 5. Articles 149 and 303 6. Ownership 7. Protection 8. Why Was the 2001 Convention Needed? 9. UNCLOS and the 2001 Convention 10. Maritime Zones 10.1 Continental Shelf/Exclusive Economic Zone 10.2 The Area 11. Nationality and Port State Powers 12. Salvage 13. State Vessels and Aircraft 14. Awareness and Information 15. The Annex 16. General Principles 17. The Archaeologist 18. Reports 19. Conclusion Chapter 14 The Environment and Cultural Heritage 1. Introduction 2. International Policy Instruments and Soft-Law Declarations 2.1 Stockholm Declaration 2.2 World Charter for Nature 2.3 World Commission Environment and Development 2.4 Rio Declaration 2.5 The Earth Charter 2.6 Millennium Development Goals 2.7 Sustainable Development Goals and Cultural Heritage 2.8 IUCN Draft Covenant 2.9 IUCN World Declaration on the Environmental Rule of Law 2.10 Draft Global Pact for the Environment 3. The Heritage Instruments 3.1 Hague Convention 3.2 World Heritage Convention 3.3 World Heritage Operational Guidelines 3.4 Universal Declaration on Cultural Diversity 3.5 Underwater Cultural Heritage Convention 3.6 Convention on Safeguarding the Intangible Cultural Heritage 3.7 ICH Operational Directives 3.8 Convention on Diversity of Cultural Expressions 4. The Environmental Instruments 4.1 Whaling Convention 4.2 Fur Seals Convention 4.3 Agreement on Polar Bears 4.4 Ramsar Convention 4.5 CITES 4.6 Convention on Migratory Species 4.7 Convention on Biological Diversity 4.8 Convention on Climate Change 4.9 Convention to Combat Desertification 4.10 Treaty on Plant Genetic Resources 5. Indigenous Heritage and Environment 5.1 ILO Convention 169 5.2 Declaration on the Rights of Indigenous Peoples 6. Conclusion Chapter 15 Safeguarding Intangible Cultural Heritage 1. Introduction: Normative and Related Operational Activities of UNESCO (1990–2003) 2. Subsequent Implementation and Limitations 3. Relationship to Other International Agreements 3.1 Intellectual Property Regime and the 2003 Convention 3.2 Human Rights Law and the 2003 Convention 3.3 Environmental Law and the 2003 Convention 4. Relationship to Other Regional Agreements 4.1 African Region 4.2 Europe (Council of Europe) 4.3 The Americas 4.4 South East Asia 5. Conclusion Chapter 16 Language as Cultural Heritage 1. Introduction: The Linguistic Heritage as Part of the Cultural Heritage 2. The National Level: Linguistic Heritage Law as Part of Language Law 3. The Limited Role of International Law Instruments Chapter 17 Cultural Heritage and Human Rights 1. Introduction 2. UNESCO Cultural Heritage Instruments and Human Rights 2.1 Cultural Heritage Conventions 2.2 Other UNESCO Instruments 3. Human Rights Instruments and Cultural Heritage 3.1 The Right to Take Part in Cultural Life 3.2 The Right to Enjoy Culture for Minorities and Indigenous Peoples 3.3 Other Human Rights Relevant to Cultural Heritage 3.4 Individual and Collective Rights and Cultural Heritage 4. A Human Rights Approach to Cultural Heritage 4.1 Access, Contribution, Participation, Enjoyment 4.2 Limitations of Rights and Harmful Cultural Practices 5. Concluding Remarks Chapter 18 Indigenous Peoples and Cultural Heritage 1. Introduction 2. The United Nations Declaration on the Rights of Indigenous Peoples 2.1 The Road towards the Declaration 3. Rights to Cultural Heritage in the UN Declaration 4. The Cultural Heritage of Indigenous Peoples: A Holistic Concept 5. Indigenous Peoples’ Rights to Their Cultural Heritage in Other International Instruments and Jurisprudence 6. Indigenous Peoples’ Rights to Their Cultural Heritage in Customary International Law 6.1 State Practice and Opinio Juris 6.2 The International Law Association and ILA Resolution No 5/2012 7. Good Practices 8. Conclusion Chapter 19 Cultural Heritage and Women 1. Introduction 2. Women’s Cultural Rights: La Lutte Continue 2.1 Disentangling Culture, Cultural Rights, and Cultural Heritage 2.2 Securing Women’s Cultural Rights: Universality, Cultural Diversity, and Non-discrimination 2.3 Advancing Women’s Cultural Rights: ‘Negative Practices’, Essentialism, and the Importance of Agency 3. The Recognition of Women within the Framework of International Cultural Heritage Law 3.1 Legal Silence through the Years: The Drafting of Cultural Heritage Treaties 3.2 Gender in Practice: The Implementation of Cultural Heritage Treaties 3.3 Remedying Gender-Blindness in Cultural Heritage: How UNESCO Is Leading the Line 4. Conclusion Chapter 20 Cultural Heritage and Intellectual Property 1. Introduction 2. Intangible Cultural Heritage in the Intellectual Property Discourse 2.1 Definitions 2.2 TCE and TK 3. Interfacing Cultural Heritage and Intellectual Property Protection 3.1 Intellectual Property Law 3.2 TK and Patents 3.3 TCE/TK and Trademarks 3.4 TCE and Copyright 4. Conclusion Chapter 21 Cultural Heritage in International Investment Law 1. Introduction 2. International Investment Governance 3. The Diaspora of Cultural Heritage-Related Disputes before International Investment Treaty Tribunals 3.1 Fair and Equitable Treatment 3.2 Expropriation 4. Critical Assessment 5. Policy Options 5.1 A Treaty-Driven Approach to Promote the Consideration of Cultural Concerns in International Investment Law 5.2 A Judicially Driven Approach to Promote the Consideration of Cultural Heritage in International Investment Arbitration 5.3 Counterclaims 6. Conclusions Chapter 22 National Treasures at the Intersection between Cultural Heritage and International Trade Law 1. Introduction 2. The 1970 UNESCO Convention on Illicit Trafficking of Cultural Property and Its Implementation 2.1 Core Definitions and Obligations 2.2 National Controls on Exportation and Importation of Cultural Property 2.3 Bilateral Arrangements on Exportation and Importation of Cultural Property 3. Quantitative Restrictions and National Treasures in the World Trade Organization 3.1 The Prohibition on Quantitative Restrictions in the WTO 3.2 The Most-Favoured Nation Obligation in the WTO 3.3 The National Treasures Exception in the WTO 3.3.1 Article XX(f) of the GATT 1994 3.3.2 Comparing the Meaning of ‘National Treasures’ and‘ Cultural Property’ 3.3.3 Stringency of the ‘Chapeau’ Requirements of the Exception 3.4 Potential for a WTO Dispute 3.5 UNESCO’s Assumption Regarding the Nexus between the 1970 UNESCO Convention and the WTO 4. National Treasures Exceptions in Other internationaI Agreements 4.1 European Union 4.2 Other Preferential Trade Agreements 4.3 International Investment Agreements 5. Conclusion PART III GENERAL INTERNATIONAL LAW Chapter 23 Custom and General Principles of International Cultural Heritage Law 1. Introduction 2. Customary Law 3. The Customary Law Prohibition of the Intentional Destruction of Cultural Heritage in the Context of Conflict 4. Illicit Transfers from Territories under Military Occupation 4.1 Is This Practice Evidence of a Customary Rule? 5. General Principles 5.1 General Principles as Expression of a General Consensus of the International Community 5.1.1 The Principle of Cultural Heritage of Humanity 5.1.2 World Cultural Heritage 5.2 General Principles Derived from Domestic Law 5.2.1 The Sovereign Right of Every State to Declare Cultural Property Located in Its Territory as Part of the National Patrimony 5.2.2 The Principle of Due Diligence 5.3 Aspirational Principles of Progressive Realization 5.4 Principles of Procedural Character 5.5 Peremptory Principles of Jus Cogens? 6. Conclusions Chapter 24 Cultural Heritage and State Immunity 1. Introduction 2. Cultural Heritage Property and Immunity from Jurisdiction 2.1 Commercial Transaction Exception 2.2 Property-Related Exceptions 2.3 Expropriation Exception under the US FSIA 3. The State of International Law on Execution Immunity for Cultural Heritage Property 3.1 Execution Immunity for Cultural Heritage Property under the UNCSI 3.2 Status of UNCSI’s Antiseizure Norms in Light of Subsequent Practice 4. Conclusion Chapter 25 Cultural Heritage and State Succession 1. Introduction 2. Territorial Change and Cultural Heritage 3. Cultural Heritage and the Codification of the Law on State Succession 4. The Practice of State Succession 5. State Succession and International Cultural Heritage Obligations 6. State Succession to International Responsibility for Cultural Heritage Wrongs 7. State Succession and Global Cultural Heritage Governance Chapter 26 Cultural Heritage and State Responsibility 1. Introduction 2. Responsibility in Cultural Heritage Conventions 3. State Responsibility for Offences against Cultural Heritage in International Humanitarian and International Criminal Law 4. General Norms on State Responsibility and Breaches of International Obligations Concerning Cultural Heritage 4.1 Attribution of Wrongful Acts to States 4.2 Substantive Aspects of the Breaches Affecting the Obligations Relating to Cultural Heritage 4.3 Circumstances Precluding State Responsibility for Offences against Cultural Heritage 4.4 Consequences Arising from State Responsibility Affecting Cultural Heritage 5. Conclusions Chapter 27 Remedies 1. Introduction 2. Remedies for Stolen Cultural Property 2.1 Restitution, Repatriation, and Return of Tangible Cultural Items 2.2 Remedies for Misappropriated Intangible Cultural Items 3. Remedies for Historical Processes of Group Cultural Destruction 4. Remedies for Intentional Destruction of Cultural Heritage 4.1 The Post-conflict Ad Hoc Approach to Cultural Destruction 4.2 The Al Mahdi Reparation Order of the ICC: Paradigmatic Shift or Yet Another Ad Hoc Practice? 5. Concluding Remarks PART IV PROCEDURAL AND INSTITUTIONAL ASPECTS Chapter 28 International Dispute Resolution Mechanisms 1. Introduction 2. Litigation before Domestic Courts 3. Litigation before International Tribunals 3.1 International Adjudication of Cultural Heritage Cases 3.2 Virtues and Vices of International Adjudication 4. Resolution of Cultural Heritage Cases through ADR 4.1 The Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation 4.2 The ICOM–WIPO Art and Cultural Heritage Mediation Program 5. Beyond International Dispute Resolution Mechanisms: Reaching Fair and Just Solutions through ADR Chapter 29 The Role of Domestic Courts 1. Introduction 2. Immunity 2.1 Immunity of Defendant 2.2 Immunity of Art Object 2.3 Return Guarantees 3. Jurisdiction of Domestic Courts 3.1 International Jurisdiction 3.1.1 Habitual Residence of the Defendant 3.1.2 Location of the Art Object 3.1.2.1 Location: Suit for Return by the Owner 3.1.2.2 Location: Declaration that Plaintiff in Possession is the Owner 3.1.2.3 Location: Suit for Return by Country of Origin of Art Objects Illegally Exported 3.1.2.4 Location: Country of Origin Prohibiting the Export of Art Objects 3.1.2.5 Location: Suit of Custom Authorities of the Importing Country 3.1.3 Doing Business of the Defendant 3.1.4 Presence of the Defendant 3.1.5 Locus Delicti Commissi 3.2 Subject Matter Jurisdiction 3.2.1 Special Jurisdiction of Administrative Courts 4. Governing Law 4.1 Lex Contractus 4.2 Lex Rei Sitae 4.3 Lex Loci Delicti Commissi 4.4 Lex Successionis 4.5 Lex Loci Protectionis 4.6 Lex Fori 4.7 Public Law 4.7.1 Public International Law: Spoils of War by Taking Booty, Prize, and Looting 4.7.1.1 War on Land 4.7.1.2 War on Water 4.8 National Law: Expropriation of All People or Discriminated Citizens 4.8.1 Expropriation of Colonial Territories 4.8.2 Expropriation of Everybody Because of Change of Economy 4.8.3 Act of State Doctrine 4.8.4 Expropriation of Persecuted Jewish Citizens 4.8.5 Sale or Destruction of ‘Degenerate Art’ 4.8.6 Forfeiture of Smuggled Objects 4.9 National Law: Export Prohibitions 4.9.1 General Law 4.9.2 Export Prohibitions of Member States or States Parties 4.9.3 Export Prohibitions of Third States 5. Application of Substantive Law 5.1 Foreign Substantive Law 5.2 Substantive Law 5.2.1 Holocaust Art 5.2.2 Spoils of War 5.2.3 Smuggled Art 5.2.4 Foreign Patrimony Laws 5.2.5 Stolen Art 5.2.6 Converted Art 5.2.7 Misattributed Art 6. Correction by the Lex Fori 6.1 Public Order of the Forum State 6.2 Overriding Mandatory Rules 6.3 Public Order of Third States 7. Recognition of Foreign Judgments 7.1 Claims for Recovery of Holocaust Art Located Abroad 7.2 Submission of Defendant Living Abroad to Foreign Jurisdiction 8. Conclusion Chapter 30 Alternative Dispute Settlement Mechanisms 1. Introduction 2. ADR Means 2.1 Negotiation 2.2 Mediation 2.3 Conciliation 2.4 Arbitration 2.5 The Institutionalization of ADR 2.5.1 The UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation 2.5.2 WIPO and ICOM 3. Conclusion: Can ADR Enhance Dispute Resolution Efficiency in the Area of Cultural Heritage? Chapter 31 International Cultural Heritage Law: The Institutional Aspects 1. UNESCO as the World Cultural Institution within the UN System 2. The Recent Strengthening of the Cooperation between the UN and UNESCO 3. The Structure of UNESCO 4. The UNESCO Heritage Conventions 4.1 Cultural Properties during Armed Conflicts 4.2 Illicit Exports of Cultural Properties 4.3 The World Cultural and Natural Heritage 4.4 Underwater Cultural Heritage 4.5. Intangible Cultural Heritage 4.6 Cultural Diversity Chapter 32 The Participation of Non-State Actors In The Implementation of Cultural Heritage Law 1. Introduction 2. Non-State Actors and the Protection of Cultural Property in Armed Conflict 2.1 Armed Non-State Actors and the Protection of Cultural Property in Armed Conflict 2.2 NGOs and Civil Society and the Protection of Cultural Property in Armed Conflict 3. Non-State Actors and the Protection of Cultural Heritage from Trafficking 3.1 Amending the ‘Due Diligence’ Requirement within the Private Sector 4. Non-State Actors and World Cultural Heritage Governance 5. Non-State Actors and the Safeguarding of Intangible Cultural Heritage 6. Concluding Remarks Chapter 33 Codes of Ethics 1. Origin and Role of Ethical Rules and Codes of Conduct in the Field of Cultural Heritage Law 2. The Main Contents of the Codes of Ethics and the Related Issues 2.1 Acquisition and Transfer of Items and Collections 2.2 Origin of Items and Collections 2.3 Professional Conduct 2.4 De-accessioning Policies and Procedures 2.5 Sanctions 3. The Interaction between Codes of Ethics and International and Domestic Law Rules 4. Codes of Ethics as Art Market Regulation Instruments 5. Concluding Remarks PART V REGIONAL APPROACHES Chapter 34 Africa 1. Introduction 2. Movable Cultural Objects 3. Brief Country Survey of National Legislations 4. Reflections on Country Survey 5. Security of Museums 6. Database 7. Strengthening and Upgrading Legislation 7.1 Administrative Measures 7.2 Participation in the Armed Conflict, Illicit Trafficking, UNIDROIT, and Underwater Cultural Heritage Conventions 8. Intangible Cultural Heritage 9. African Participation in Intangible Cultural Heritage and Cultural Diversity Conventions 10. Neglect of Immovable Cultural Heritage—Monuments and Sites 11. Participation in the World Heritage Convention 12. The Way Forward Chapter 35 Asia 1. Introduction 2. East Asia 2.1 The Rise of Asia in the Art Market and Its Shadow 2.2 Domestic Legislation on the Protection of Cultural Heritage 2.2.1 China 2.2.2 Japan 2.2.3 Korea 2.3 (Lack of) International Cooperation in East Asia 2.4 Return of Cultural Objects to Their Countries of Origin 3. South East Asia 3.1 Serious Challenges for the Protection of Cultural Heritage in South East Asia—the Cambodian Experience 3.2 Overview of the Domestic Legislation for the Protection of Cultural Heritage in South East Asia 3.3 (Lack of) International Cooperation in South East Asia 3.4 Return of Cultural Objects to Their Countries of Origin 4. Concluding Remarks Chapter 36 Oceania 1. Introduction 2. Oceanic States and International Law 3. Regional Programmes 4. Regional Organizations 5. World Heritage 6. World Heritage List 6.1 World Heritage Operational Guidelines 6.2 Legal Pluralism and Customary Land Ownership 6.3 UNESCO SIDS Action Plan 2016–2021 7. Intangible Cultural Heritage 8. Remaining UNESCO Conventions 9. Comparative National Approaches 10. Conclusion Chapter 37 Central and South America 1. Introduction 2. Domestic Law Trends across the Region 3. The Universal in the Regional 4. Forging Regional Identity through Heritage 5. Policy Programmes: Development through Culture 6. Standard-Setting in the Americas: Roerich and Beyond 7. Concluding Remarks Chapter 38 Europe 1. Introduction 2. A Regional Response? 3. The Council of Europe 3.1 Competence and Instruments 3.2 Substantive Measures 3.3 The European Convention on Human Rights and the Preservation and Protection of Cultural Heritage 4. The European Union 4.1 Competence and Instruments 4.2 Substantive Law and Policy 4.3 Cultural Heritage and Human Rights in EU Law 5. The CoE and the EU: Friends and Rivals? Chapter 39 Middle East and North Africa 1. Introduction 2. International Approaches to Protecting the Past 3. National Legislative Approaches 3.1 Elements of National Cultural Heritage Legislation? 3.1.1 Government Oversight 3.1.2 Definition of Cultural Property and Date 3.1.3 Ownership and Transfer of Cultural Objects 3.1.4 Inventories and Records 3.1.5 Archaeological Excavations and Surveys 3.1.6 Trade in Cultural Items 3.1.7 Export and Import Controls 3.1.8 Cultural Heritage Crime and Penalties 4. Conclusion Chapter 40 North American Cultural Heritage Law 1. Domestic Regulation in North America 1.1 Mexican Domestic Protection, Nationalization 1.2 United States Domestic Protection 1.3 Canadian Domestic Protection of Heritage 1.4 Special Law Enforcement Efforts Devoted to Cultural Heritage 2. Engagement with International Efforts 3. The United States and the 1970 UNESCO Convention 4. Prosecution of Illicit Trafficking of Cultural Property in the United States 5. The Key Role Played by Customs and Border Protection in the United States 6. The Protect and Preserve International Cultural Property Act 6.1 Canada and the 1970 UNESCO Convention 6.2 The World Heritage Convention 6.3 Underwater Cultural Heritage 7. Conclusion Index