ABSTRACT
The chapter focuses on international private law, an area of law particularly relevant to contested heritage: cultural objects that were removed from their original setting and, over time, ended up elsewhere in the world. The thesis in this chapter is that, whilst the legal status of cultural objects traditionally is a matter of ownership law (ownership title), that status is also increasingly influenced by rights of others who are culturally linked to that object (heritage title).
In this chapter, the basic tenets of international private law (jurisdiction, the applicable law and execution), and some important legal notions (good faith and prescription) will be introduced. Their relevance to cross-border disputes that concern cultural objects will be illustrated by case examples, such as the Malewicz, the Cassirer, the Ortiz and Barakat cases. The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, that was adopted as an answer to the problem caused by differences between national private laws that define the legal status of cultural objects, will also be addressed. This Convention has been of particular importance to the development of due diligence standards for the trade in cultural objects, and the role of provenance research in that regard, but also on its weakness, namely that it is not widely ratified and does not apply to older losses.
Where judges would normally be guided by rules of international private law to reach ‘just’ decisions over contested cultural objects, the existing tools have thus appeared to be insufficient in practice. Consequently, (international) soft law instruments gained importance in the field of restitution. In the meantime, also new international legal instruments were adopted that underscore that, beyond ownership (defined by private law), also other interests are at stake. By discussing case examples to illustrate that more (legitimate) interests than just private ownership rights are at stake, the notion of heritage title will be explained. The rights involved are not defined in terms of ownership but in terms of access and control for those to whom a specific cultural object has a deeper meaning.
