oa Comparative and International Law Journal of Southern Africa - Cultural heritage jurisprudence and strategies for retention and recovery
|Article Title||Cultural heritage jurisprudence and strategies for retention and recovery|
|© Publisher:||Institute of Foreign and Comparative Law|
|Journal||Comparative and International Law Journal of Southern Africa|
|Affiliations||1 Department of Jurisprudence, UNISA|
|Publication Date||Nov 2002|
|Pages||157 - 181|
|Keyword(s)||Comity principle, Cultural heritage, Cultural property, Domestic export law, Export control law, International litigation, Jurisprudence, South African courts, States of origin and Trans-border trafficking|
A country seeking return of an item of its cultural heritage must be willing to confront numerous potential obstacles to successful international litigation. These range from procedural aspects such as standing to sue, to the finer implications of import and export legislation and domestic ownership rules. Many and varied interpretations could be given to the concept' state of origin', for example. In order to address state claims to cultural heritage, courts have also resorted to conflict of laws doctrine. While traditional conflicts methodology is not always respected, these cases highlight how the application of foreign law can assist in resolving conflicts regarding cultural objects. A variety of tools are available in the subject-field, including directly applicable (mandatory) rules, international public policy and comity. Regrettably, certain rules of the conflict of laws may be applied in ways that conceal the true thrust of legislation designed to aid retention and recovery of items of cultural heritage, or that overshadow international public policy in the area.
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