Private International Law, Art and Cultural Heritage

Private International Law, Art and Cultural Heritage

Christa Roodt

In this timely book Christa Roodt demonstrates how the structure and method of private international law can be applied in its expanding relationship with cultural heritage law. In particular, she explores the use of private international law in the context of ownership claims and the illicit trafficking of cultural objects. She shows how, in decisions about classification and the public policy exception, and in the application and treatment of foreign public law, value-rationality and mutuality can defeat the dogmatic underpinnings of conflicts and jurisdiction rules that frustrate the achievement of global solidarity.

Chapter 7: Towards the equalisation of claims based on public and private law

Christa Roodt

Subjects: law - academic, cultural heritage and art law, private international law


A ‘vesting law’ asserts state ownership in the vestiges of the past. Source nations may benefit from having a measure of control over the dispersion of creative works and artefacts that lie in the ground or under water inside their territory. Laws that intend to control theft, looting and illicit excavation and export of antiquities and cultural objects which source states identify as theirs, enable states to institute claims to artefacts underneath the soil that have been removed, and to safeguard their interests as the natural and original ‘home’ of the object in question. Rules of common law in respect of ownerless property may have a comparable effect. Extending respect to foreign law is an important element of international understanding which Rabel considered important in private international law. Ultimately, this respect impacts on the success of civil claims for restitution against traffickers, dealers and middlemen. These laws can curb the global illicit trade of antiquities and archaeological material only when market states extend their application rather than confine it to the territory of the enacting state. This perspective on the treatment of foreign law transcends the polarised national–international debates about ownership of cultural heritage. The internationalist ideal that national laws ought to be employed for the good of all certainly sounds simple enough, but restitution claims by source states are frustrated if they are instituted when export took place long before it became illegal to do so.

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