Restitution Of Cultural Property Under International Law

In recent years, the illegal transfer of cultural property has spread around the world. Both in times of war and times of piece, countless pieces of cultural property are lost because of plunder, theft, fraud and illegal export. Although laws related to the protection of cultural property within the frameworks of domestic and international law has developed rapidly, however because of the special value of cultural property as the irreplaceable store of memory for countries, nations and communities and their simultaneous importance as aesthetic, educational and collection pieces cultural property disputes impact the interest of many parties. For this reason, whether or not the international society should require restitution of cultural property has given rise to multilayered controversy.In this context this paper examines this controversial topic within the framework of international law, analyzing the restitution of lost cultural property on the basis of culture and the law, creates a moral and legal basis for source countries seeking restitution of lost cultural property and discusses the choices and paths for the restitution of lost cultural property with a special emphasis placed on describing obstacles that can arise during litigation.The introduction begins with definitions for cultural property and values, exemplifying the uniqueness of cultural property. Finally it discusses the reasons cultural property become objects of contention between states.The first chapter primarily explores the rationale and necessity for the restitution of cultural property from a theoretical perspective. First, the author uses the cultural and national attributes of cultural property to prove the non-transferability of cultural property. Next, through an analysis of the nature of cultural property the author proveslegal rights of the source countries. Finally, in order to going to a theoretical extreme,, the end portion of this chapter analyzes the opposing ideas of nationalism and universal values. The second chapter discusses the legal basis for the restitution of lost cultural property. This chapter is primarily focused on the current three international convention sin the area of cultural proper,1954’s "Hague Convention", 1970’s "UNESCO Convention" and 1995’s "UNIDROIT Convention", in an attempt to search for a basis to support the restitution of lost cultural property.The emphasis of the paper is discuss methods for the restitution of cultural property, litigation, diplomacy, international organizations and etc. In terms of protections under private law, judicial proceedings are a path that can be taken, the United States has accrued many judgments that can serve as reference in this area. Even so, during litigation, there are many obstacles that make cultural property restitution ligation insufficient in the fulfillment of the party making the request. For example, dispute cases where a country is the defendant, countries usually claim special immunity and advocate that foreign courts do not have jurisdiction over them, and request to dismiss the legal action, thus ending the proceedings. For example, in the legal systems of different countries, rules governing property rights, time limitations on the restitution of cultural property, protections for benign purchasers and and other laws come to different conclusions when applied in different countries, sometimes resulting in serious injustices. As for the final and most crucial step in a case, the execution phase, the uniqueness of cultural property and foreign judgments on cultural property are causes for uncertainty.The unpredictability and instability of litigation, as well as time and financial costs associated restrict the restitution of cultural property. Most important is the litigation associated with cultural property always because complicated because of the enormous financial and cultural value that is associated; cases not only affect the property rights disputants, but also the emotional and moral rights, and may even the cultural dividing line between different countries and nationalities, inciting more controversy by involving the traditional concepts of litigation from different cultures regarding cultural property disputes. To promote the restitution of cultural property, there must a path to resolve cultural property disputes outside of litigation, there must be way to utilize the strengths of diplomacy, international organizations and regional organizations to create positive interactions in the international community concerning the protection and restitution of cultural property.