THE RIGHT TO RESTITUTION OF CULTURAL PROPERTY REMOVED AS SPOILS OF WAR DURING THE NINETEENTH-CENTURY INTERNATIONAL WARFARE

Abstract

Many current disputes over cultural property resulted from war confiscations during the nineteenth-century international warfare. India demands the return of the Kohinoor diamond from the United Kingdom while China attempts to recover copper animal heads seized by the British and French armies. Do these states have legal rights under customary international law (CIL) to recover looted artifacts today when current conventions are not applied? Scholars often argue that such claims have no basis in CIL. However, this article questions their conclusions because they retroactively apply the current CIL-making approach to determine whether any CIL rules existed in the nineteenth century. Instead, this article uses the intertemporal law approach to first identify the contemporaneous CIL-making criteria in the seventeenth through twentieth centuries, and then apply these tests to trace the evolution of the CIL rules against wartime looting of cultural property. I argue that CIL has prohibited such practices and provided restitution as the primary remedy in circumstances of violations since the nineteenth century. This right to restitution has been established as a general rule that should be applied to all states rather than only Western “civilized nations.” Moreover, the passage of over 150 years since the time of removal will not inhibit claims for restitution, so long as the plundered artifacts still exist and are identifiable. This article provides an original interpretation of CIL-making in the law of war in respect of cultural property and convincingly paves the legal grounds for claiming historically looted cultural property today.