Chapter 8: Realising the potential of private international law to settle claims to art and cultural heritage
Private international law and cultural heritage law are both in search of comprehensive models and guiding principles to counter the illicit trade of art and antiquities and to reconcile radically opposing interests. Preservation, protection, access, free movement, and the ‘public good’ count among the public interests that clash and clamour for attention in claims for restitution. These claims call forth tensions between public and private, between law and ethics. Criminal activities involving art have several aspects in common with clandestine excavation of antiquities. Those who are motivated by economic gain are attracted to these crimes; revolution, war, conflict and state repression provide fuel for these activities; and once committed, title laundering is likely. The relationship between private international law and cultural heritage law is at an interim rather than a final stage. The capacity of private international law to accommodate cultural heritage law, and to promote international understanding, is not a foregone conclusion. Continuous adjustment is required to enable this to happen as their interaction becomes more frequent and more intense. Looters, dealers and middlemen use or avoid the law in cross-border deals to advance their position in the market, but the true owner or the source state can institute a civil claim to obtain restitution or return of an object that has been traded after it has been stolen, looted, excavated or smuggled into another jurisdiction.
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