A Commentary to International Conventions and European Union Law
- IHC Series in Heritage Management
Chapter 5: Dispute Resolution in Cultural Property Cases
5.1 JUDICIAL RECOURSE Cultural property claims, especially those involving the return of cultural objects to their countries of origin, are usually international claims. Either they involve more than one state or, even where states are not involved, they are trans-border claims where one party in one state is required to return a cultural object to another party in another state.1 International conventions apply in both inter-state and private disputes, depending on the scope of the convention. Sometimes, the application of the convention to the case will take the form of general principles derived from it. Up to now experience has shown that recourse to the courts usually takes place if a) the claim is crystal clear in terms of its facts (e.g. how the object has been alienated from the claimant, where it is found, who owns or possesses it) and its legal bases (the law applicable in the case at issue clearly provides for its return/restitution, the claim is not statute barred and so on), and b) there are private parties involved where the influence of a state cannot be used for the out-of-court settlement of the case. Litigation is usually expensive and takes time. However, it also gives claimants the opportunity to act swiftly in order not to have their claim statute-barred (the filing of a suit interrupts the running of any time limitations and one can also file for provisional measures/injunction in order to ‘freeze a situation’2 until a final decision is reached). On top of that,...
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