The Legal Settlement Of International Disputes With The Restitution Of Cultural Property

The solutions of international disputes with the restitution of cultural property include negotiation,conciliation and other solutions in private law,like international civil litigation,arbitration and mediation.This paper intends to analyze the main legal problems in the process of dispute settlement of cultural property with the method of litigation,and make some proofs of the ADR in the field of the restitution of cultural property in recent years,so as to use appropriate dispute resolutions and properly handle the legal issues involved during the process of recourse of our cultural objects in the future.At the same time,make some objective assesssment of the current legislation in China in advance,to find defects and make some recommendations.The paper is divided into five chapters,the number of characters(excluding spaces)a total of about 260,000 words.In the way of argumentation,the paper mainly use the method of induction and case analyzation,and tries to make a comprehensive analysis of the settlement of cultural property disputes from the perspective of private law.The first chapter,“the basic theory of international disputes with the restitution of cultural property”,the purpose of this chapter is to analyse the basic theory which will be involved and lay the foundation for the future development.“Cultural property” is not the only expression,the similar concepts are “cultural heritage”,“cultural objects”.There exist some differences with the background,connotation,value of this three concepts.For the convinence of discussion,“Cultural property” and “cultural objects” will be used exchangely,in essence,it refers to the movable cultural property.The disputes with the restitution of cultural property can be divided into the cultural property disputes that have been plundered during the war and stolen or illegally exported in peacetime.Also the disputes can be divided with the standard of subject.The subject of this paper excludes the disputes between states.The theoretical roots of cultural property dispute lies in the existence of cultural nationalism and cultural internationalism,which make the cultural property disputes be a crux.In my opinion,a dialectical view should be placed with the relationship between cultural nationalism and cultural internationalism,there are not be absolutely opposing.As early as the twentieth century,the international community tried to solve cultural property disputes through the conclusion of specialized international conventions.The main issues related to this study were the 1970 UNESCO Convention and the 1995 UNIDROIT Convention,which had strong complementarity.The second chapter,“The jurisdiction of international disputes with the restitution of cultural property”,the aim of this chapter is to analyse the jurisdictional issues from a broad perspective so as to clarify the obstacles of domination on cultural property disputes.The term “jurisdiction” here is a broad concept that includes both the determination of a qualified jurisdiction and the specific exercise after the determination of the jurisdiction.The subject of the litigation is the prerequisite for the jurisdiction of the court in the case of the dispute.The subject of the litigation needs to meet the conditions of “legal person” and “direct interest”.However,the scope of the litigation subject has the tendency of expansion,Public interest litigation gradually rise.The main body of litigation in the cultural property disputes may be states or other subjects other than states,both of which have certain feasibility and defects.The traditional jurisdiction rules with cultural property disputes lies in the places of the disputed objects,however,“the minimum contact rules” in USA has made some changes with the determination of jurisdiction of cultural property disputes.The states always seek jurisdiction exemptions.However,with the change from absolute exemption to restrictive exemption,there have been some exceptions to jurisdictional immunities,including “commercial exceptions” and “taking exceptions”.The issue of judicial seizure exemption in the context of cultural property on loan is a hot issue that has become increasingly prominent in recent years.The United Nations Convention on Jurisdictional Immunities of the State and its Property has given some protection to cultural property on loan,but there are still some shortcomings.Including France,Germany,Australia and many other countries have specifically developed the law with the exemption of seizure of cultural property on loan.The international community also recognized that importance with the grant of exemption of seizure for cultural property on loan,“Draft Convention on Immunity from Suit and Seizure for Cultural Objects Temporarily Abroad for Cultural,Educational or Scientific Purposes” has passed in 2014,which provides an effective reference for the future legislation in China.The third chapter,“The application of law over the international disputes with the restitution of cultural property”,is divided into three aspects.Firstly,the hypothesis of the application of the law lies in the conflict of laws.The conflict of laws can be expressed in three ways.The first is conflict of classification,which contains the natures of cases and subject matter.The second inconsistency exists between the civil law and the common law countries on the bribery of the rules of good faith,leading to the selection of cultural property criminals using the differences in goodwill to select the countries that are favorable to them.The 1995 UNIDROIT Convention clearly stipulates that the stolen cultural relics do not apply to the bona fide acquisition and the illegal export of cultural objects.The third is the conflict of limitation,including the conflict of prescription and negative prescription.Some special rules of limitation have been formed in US,such as discovery rule,demand and refusal rule etc.Secondly,the result of a conflict of laws ultimately depends on the application of the rules of law.The traditional law of the application in cultural property disputes is lex rei sitae,but in recent years,lex originis,the Substantive Law and the law that cultural property undisputely owned had gradually discussed and used.This article favors the application of lex originis,but it should have some prerequisites for its application.Finally,the extraterritorial recognition of cultural property law.In order to prevent the illegal loss of cultural property,countries have formulated a series of laws,which can be divided into national ownership legislation and export control legislation.Generally speaking,the national ownership legislation belongs to private law,which should be recognized by foreign courts.but the criterias of judgement of Ownership legislation are not consistent,there are two methods which are “content analysis” and “nature analysis” in US and England,also some criterias of judgement had been formed.Although export control legislation is considered to public law,but it also has some space of recongnition in other countries.The judicial practice of some countries shows that cultural property protection can be seen as a public policy which has domestic nature or international nature,thus leads to a common recognition of foreign cultural property legislation.The forth chapter,“Alternative solutions to international disputes with the restitution of cultural property”.Litigation is not the only solution to the resolution of cultural property disputes.In recent years,alternative dispute resolution has gradually emerged in the field of cultural property disputes.ADR include arbitration,mediation,mediation,negotiation,etc.Mutual Beneficial Repatriation Agreements play an important role as a special alternative solution to the return of cultural property.Arbitration has a clear advantage for the return of cultural property,scholars have proposed two ways to resolve disputes over the settlement of cultural property,which are dependent on the Permanent Court of Arbitration and in the 1995 UNIDROIT Convention,both ways are feasible;I believe that in the long run,it is necessary to establish the International cultural Dispute Tribunal in 1995 UNIDROIT convention framework,and put forward some implementation plans.In addition,the mediation solution for the return of cultural property is also of concern.At present,the mediation procedures under the ICOM-WIPO framework and the ICPRCP framework clearly suggest that there are differences in the design of the two mediation procedures for the return of cultural property.The fifth chapter,“Problems and Suggestions in the Recovering of Cultural Objects in China”.Recalling the history of the loss of cultural relics in China,mainly concentrated in the Opium War,the Eight-Power Allied War of aggression against China,the Japanese invasion of China and smuggling of cultural objects since the reform and opening up of China.Since the 90 s of the 20 th century,China launched a number of overseas lost cultural relics recourse action,achieved some success,but the chance is higher,the recourse process also exposed a lot of problems with existing institutional mechanisms.I believe that it can be improved in following ways,such as the establishment of special pursuit Cable institutions,the improvement of the loss of cultural relics information transmission mechanism,the establishment of the loss of cultural relics evidence retention system.In order to prevent the illegal loss of cultural relics and promote the return of cultural relics,China has formulated the Law on the Protection of Cultural Relics,and other laws,including the Property Law and the Law on the Application of Law on Foreign-related Civil Relatives,which are also related to the loss of cultural relics.These laws are generally effective,but there are still some problems,I have made some suggestions for improvement.