Abstract
Looted art has recently got more and more into the focus of international attention. This is due to a number of historical events concerning looted art. Two prominent examples are the looting of art from museums in Iraq in 2003 and the various ways the Nazis used for dispossessing owners of works of art in the period from 1939 until 1945. These and a wide range of other less prominent events such as the illegal excavation of archaeological objects have resulted in a flooding of the art market, as huge amounts of works of art that were illegally taken away from their former owners or original settings have been put on the art markets all over the world. Many of these objects have since become part of private or public collections.There are various ways in which the law may respond to these challenges. First of all there exist a number of legally binding provisions in the field of public law. Furthermore there are politically binding declarations such as the Terezin Declaration dated June 30, 2009. However the focus of this intervention, which takes as an example works of art that were looted somewhere in the world and then imported into Germany, is on the instruments provided by private law that may be used to discourage the looting and illegal trade of works of art. The contribution argues that the rules of private international law as well as those concerning the substantive property law should be subject to some modifications as far as the restitution of works of art is concerned. Private law may thus contribute to the protection of works of art and help reduce looting as well as illegal trade.
Highlights
By submitting the transfer of property to the legal system of the territory in which the object is physically 6 located at the moment when the transaction takes place, the situs rule respects the typical interests of the market, as this assures an easy, swift and reliable way of transferring property
Private international law usually provides that rights regarding movable property are subject to the situs rule
Apart from private international law there exists a second area of private law where the restitution of looted art 10 may be facilitated, i.e. the rules governing the acquisition of property
Summary
Private international law usually provides that rights regarding movable property are subject to the situs rule. 5 This rule means that the ownership of an object is determined by the laws of the state where the object is located at the respective moment. A fine example for the difficulties of assessing the law of origin is offered by the work of Moscow-born artist Wassily Kandinsky This painter spent much of his life in various parts of Germany, where he painted a considerable number of local landscapes. This proposal does not appear to be convincing either Another approach is to try and establish a connection to the law of the country from which the work of art 9 has been exported contrary to a ban on exportation. The question is not to enact the foreign ban on exportation but to find a suitable connection for the purpose of private international law This solution avoids the problem of a change of statute which the situs rule is confronted with and the application of a law that is "friendlier with regard to acquisition", like Italian law that, in contrast to German law, generally allows even stolen goods to be acquired. The connection mentioned above, that points at the law of the state that has established the (first) ban on exportation of the piece of art concerned, should be favoured
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