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This book analyses the instruments and approaches offered by public international law to resolve cultural heritage related disputes and facilitate the return of illicitly transferred objects to their countries of origin. In addition to assessing the instruments themselves, their origins, and their advantages and disadvantages, it also examines the roles and interests of the actors involved. Lastly, the book explores the interaction between hard and soft law approaches, the reasons for and importance of this interaction, as well as its consequences.

In no other area is the conflict between former colonial powers and their former colonies as open and passionate as in the question of repatriation of colonial cultural heritage.

International treaties are not only a source of international law; they are also a classical means to regulate matters of concern to the international community. Hence, it is not surprising that the international community’s first approach to resolve the issue concerning the return of cultural objects was to rely on an international treaty. This approach was further encouraged by the fact that issues surrounding cultural artefacts were generally perceived as national or state affairs. This chapter focuses on the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the first international agreement for times of peace on an international scale exclusively devoted to the regulation of the return of cultural objects. After an overview of the first endeavours of the international community to enact such an agreement and the historical developments leading to the adoption of the treaty along with the challenges that had to be overcome in the course of the negotiation, the convention is analysed in depth. Its purpose, scope and regulations are broken down in the light of the convention’s genesis and the different actors’ positions with an emphasis on the rules concerning the return of cultural objects. Finally, the relevance as well as the strengths and weaknesses of the treaty are more closely scrutinised.

Throughout history cultural objects have attracted the attention of mankind for numerous reasons: In times of war, they have been looted as trophies, to pay troops, or to further humiliate the enemy. In times of peace, they have been not only subject to clandestine excavations but also served as gifts for foreign dignitaries and were objects of trade. In recent centuries, they also became objects of scientific interest. While some of these activities have long been illegal, such as clandestine excavations, others have only become illegal with the passing of time, such as the looting of an enemy’s cultural treasure. Some continue to be legal, for instance, the legal trade in cultural property, whereas others, even though they still may be considered legal in a strict sense, raise moral issues, such as the transfer of artefacts from colonies to the colonial powers in former times. The example of cultural objects transferred in colonial times has brought about many claims for the return of these cultural artefacts and these claims have given rise to disputes. This book analyses how the international community tries to resolve the issue concerning the return of cultural objects transferred in times of peace by employing different instruments. The Introduction lays the foundation for an understanding of the general problems the international community is confronted with in its endeavour by highlighting the various positions of the major actors, the ideological concepts they employ and how these are reflected even in the use of terminology.

The seeds of the idea to employ alternative dispute resolution as a way to solve cultural object related disputes can be traced back to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. For example, Article 17 (5) of the 1970 UNESCO Convention provides the possibility for UNESCO to extend, upon request, its good offices to reach a settlement between two state parties which are engaged in a dispute over the implementation of the convention. The 1995 UNIDROIT Convention even contains an arbitration clause. However, it has only been in recent years, when the treaty approach had been complemented by a more cooperative and procedural approach, that alternative dispute resolution entered the limelight and rules of procedure for alternative dispute resolution tailored specifically for cultural object related disputes came into being. Both UNESCO’s Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation and ICOM in cooperation with WIPO have adopted rules of procedure for mediation (and conciliation). This chapter assesses the benefits and limitations of alternative dispute resolution as a means to solve cultural heritage related disputes in general before analysing both instruments, the ICPRCP Rules of Procedure for Mediation and Conciliation and the ICOM-WIPO Mediation Rules, in detail and highlighting their linkages with the instruments covered in the previous chapters.

The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property constitutes a milestone. It is the first treaty on an international scale exclusively devoted to the regulation of the return of cultural objects transferred in times of peace and hence, as one of its major achievements, the first globally-designated treaty to provide a legal basis to reclaim such items. Nevertheless, the 1970 UNESCO Convention has many shortcomings. Inter alia, it only raises questions of private law, but does not resolve them. Hence, the international community soon after its adoption realised the need for further action to overcome its flaws, particularly its missing private law dimension. This led to the adoption of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, which this chapter analyses in detail. Its purpose, scope and regulations, particularly those concerning the return of cultural objects, are broke down in the light of the convention’s genesis as well as the different actors’ positions and in comparison to the 1970 UNESCO Convention. Furthermore, the intertwining nature of both conventions is highlighted. The chapter concludes with an elaboration on the 1995 UNIDROIT Convention’s relevance, as well as its strengths and weaknesses, before providing an overall evaluation of the treaties and the suitability of international treaties in general to solve controversies concerning claims for the return of cultural objects.

The international community realised as early as during the negotiations of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property that the establishment of an international treaty regime with binding obligations concerning the return of cultural objects transferred in times of peace appealing to both market and source states was difficult to achieve. Therefore, a search to complement the treaty approach began. At the same time private parties, frustrated by the uncertainty of how to face claims for the return of cultural objects created by the lack of sufficient legislation, became more proactive. These endeavours of the international community and private parties have brought to life a number of new instruments in the years following the adoption of the 1970 UNESCO Convention. This chapter is devoted to an examination of these instruments, namely UNESCO’s Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation, the ICOM Code of Ethics for Museums, the UNESCO International Code of Ethics for Dealers in Cultural Property and the Principles for Cooperation in the Mutual Protection and Transfer of Cultural Material of the International Law Association. These instruments are classified and analysed in depth, in particular in the light of their respective genesis and the interests of the actors involved in their creation as well as in comparison to one another and both the 1970 UNESCO Convention and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. At the same time, the general suitability of fora and soft law to contribute to the solution of controversies concerning claims for the return of cultural objects is likewise addressed.

In its endeavour to find a solution to disputes arising over the return of (illegally) transferred cultural artefacts, the international community has brought into being a number of instruments ranging from conventions to codes of ethics. These mechanisms and instruments can essentially be divided into two categories which reflect the different approaches to resolve the matter. On the one hand, there are the international treaties which represent the hard law method. This approach relies on legally binding obligations to guarantee the return of illegally transferred cultural heritage and establish mechanisms to prevent its illicit outflow to avoid disputes in the first place. On the other hand, there is the soft law approach which trusts in the good will of the parties involved and cooperation as the appropriate manner to address disputes concerning the return of transferred cultural objects. However, both methods simultaneously have merits and drawbacks. The conclusion of this text compares both approaches and highlights their respective advantages and disadvantages. More importantly, it points out how both approaches are intertwined, complement each other and how fruitful this linkage is.