Chapter 7: Towards the equalisation of claims based on public and private 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.
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.