Bratislava Law Review (Jul 2024)
Cultural Property Protection in Private International Law
Abstract
The armed aggression of the Russian Federation against Ukraine has brought the issue of protecting cultural property to the forefront. Numerous documented cases of illegal exports of cultural property from Ukrainian museums located in territories occupied by the aggressor country have emerged. In addition, little is known about the number of stolen objects from private collections, which are considered cultural artifacts. There are no statistics available on this matter. This paper aims to explore the problem of applicable law during the consideration of disputes regarding the protection of cultural property. The author examines the concept of cultural property restitution in private international law and different approaches and concepts for defining "restitution" and "return" of cultural values. It has been argued that the term “return of cultural property” should encompass a wider scope, including both the restitution of illegally exported cultural property and the return of cultural property that was legally in the possession of another state but was later repatriated to the original state as a gesture of goodwill. The author offers his definitions of these terms based on theoretical research, as well as an analysis of the domestic legislation of Ukraine and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Property of June 24, 1995. The paper also delves into the issues of conflict regulation of disputes involving cultural values. Both the issues of determining the right of ownership to and the problems associated with the protection of the right of ownership of cultural property in private international law are considered. The point of view that the conflict of laws rule lex originis (the law of the country from whose territory the cultural property was exported) should be applied in disputes regarding the return of cultural property from someone else's illegal possession is supported. The author concludes, based on a comparative analysis of laws on private international law, about the most appropriate mechanism for protecting the property rights of a bona fide purchaser in disputes over cultural property.
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