The Two-Pronged Strategy: Transiting to a Cooperative and Procedural Solution

Abstract

The international community realised as early as during the negotiations of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property that the establishment of an international treaty regime with binding obligations concerning the return of cultural objects transferred in times of peace appealing to both market and source states was difficult to achieve. Therefore, a search to complement the treaty approach began. At the same time private parties, frustrated by the uncertainty of how to face claims for the return of cultural objects created by the lack of sufficient legislation, became more proactive. These endeavours of the international community and private parties have brought to life a number of new instruments in the years following the adoption of the 1970 UNESCO Convention. This chapter is devoted to an examination of these instruments, namely UNESCO’s Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation, the ICOM Code of Ethics for Museums, the UNESCO International Code of Ethics for Dealers in Cultural Property and the Principles for Cooperation in the Mutual Protection and Transfer of Cultural Material of the International Law Association. These instruments are classified and analysed in depth, in particular in the light of their respective genesis and the interests of the actors involved in their creation as well as in comparison to one another and both the 1970 UNESCO Convention and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. At the same time, the general suitability of fora and soft law to contribute to the solution of controversies concerning claims for the return of cultural objects is likewise addressed.