Complementary and Alternative Mechanisms Beyond Restitution: An interest-oriented approach to resolving international cultural heritage disputes

Abstract

Disputes over the restitution and return of cultural materials have steadily increased in recent years. While several restitution claims pertaining to Nazi-confiscated art have been resolved, other cases relating to the appropriation of cultural materials during war, foreign or colonial occupation, theft, or as a consequence of illicit trafficking have proliferated. Despite these challenges and recent developments in international law, international treaty law and current State practice in resolving restitution disputes primarily focus on arguments associated with State interests and property rights, and thus do little to accommodate the interests of the various stakeholders involved in restitution disputes. Moreover, because of major legal obstacles claimants face in restitution cases (namely the non-retroactivity of international treaty law, the protection of the bona fide purchaser and provisions on the lapse of time), a purely legal approach is not a viable option in many restitution disputes. Therefore, this dissertation introduces an approach that aims at taking into account the interests of the various stakeholders in the resolution of these disputes. In a second step, complementary and alternative mechanisms in the resolution of restitution disputes are examined in order to accommodate these different interests. The utilization of this interest-oriented approach will allow restitution disputes to be resolved in a more sustainable and cooperative manner; moreover, ethical and historical considerations can also be more adequately addressed than in a purely legal approach. It will be demonstrated that within the scope of the ‘common interest’ in the protection of cultural heritage, other issues can be identified as being of common concern, including: physical and cultural preservation, access, integrity, and cooperation. Since these aspects form part of the ‘common interest’, they are valid not only for the protection of cultural heritage in war and peace, but must also be taken into account in the resolution of restitution disputes. Consequently, these common interests form new general principles in international cultural heritage law.