Chapter 3 observes the stark contrast between long-standing practices of market opacity and secrecy in the field of cultural property and current legal, professional, reputational, and ethical trends that promote a requirement to engage in due diligence in dealing with cultural property. It then highlights the changing role and scope of provenance research, which has evolved from a highly selective focus on an object’s “career highlights” to promote its value to the task of identifying potential “dark holes” in the chain of title and possession of an item since its creation or discovery. This changing paradigm can be largely attributed to the renewed interest, as of the 1990s, in the history of items that may have been involuntarily lost by their Jewish owners during the Nazi era. This chapter shows how the professionalization and systematization of provenance research, while taking different forms across various jurisdictions in Europe and beyond, may prove essential for promoting provenance research on the history of other cultural items, such as colonial-era objects.

Chapter 6 aims to construct a future-looking theoretical framework for handling cultural objects for which questions of past illegality and/or illegitimacy arise but where a potential claimant – whether an individual, a community, or a source nation – is unable to pursue formal legal proceedings against the current possessor, and the relevant law enforcement agencies cannot equally pursue criminal, administrative, or public law proceedings. Accordingly, the chapter seeks to identify normative principles for dealing with the issue of “restitution” (broadly defined) that operates outside the realm of hard-law norms and institutions. It starts by examining the key aspects of the institutional/procedural and normative principles of the restitution committees established in certain European countries and tasked with the development and implementation of “just and fair solutions” to address Holocaust-era wrongful dispossessions. It then considers whether “just and fair solutions” can be devised for other contexts and, if so, how legalistic ethical reasoning could be adapted for these settings. The focus then shifts to the case study of France and its complex approach to the restitution of colonial-era objects to African source countries. The chapter then examines the various remedial mechanisms that are in operation, or that can be developed, to apply such normative principles to broader contexts of addressing past wrongs, including long-term loans, digital restitution, and the establishment of cross-border trusts to enable the joint custody and stewardship of collections. The chapter, and the book, conclude by addressing the role of such a normative blueprint, aligned with the concept of new cultural internationalism, in moving toward the convergence of law, policy, and markets for cultural property.

Chapter 1 analyzes the new balance of power emerging in the world of cultural property between source countries and market countries. It begins with a case study of the Benin Bronzes and the recent measures of “cultural diplomacy” employed between Nigeria, as the source territory of these objects, and governments and cultural institutions located in Western countries. It then explores cases where cross-border collaboration takes place to address real-time or recent acts of illegal excavation, looting, and smuggling of cultural objects across national borders. With these in mind, the chapter introduces the concept of new cultural internationalism, suggesting that these changing dynamics should not be seen as leading to “isolationism” or a backlash against globalization. This is particularly true as the cross-border nature of cultural property markets is probably more dominant than ever before, though it now bears more complex and multidirectional traits compared to the traditional categorical division into source countries and market countries.

Chapter 4 offers a first-of-its-kind taxonomy of different types of cultural property databases that are being developed and expanded at an increasing rate by a multitude of private and public entities. It explains how such digital databases may facilitate a legal, public-policy, and professional shift in designing law, policy, and markets for cultural property. The chapter begins with a study of the recently launched Digital Benin project and then offers an overview of (1) international and national databases for crime detection, such as INTERPOL’s Stolen Works of Art Database; (2) private databases offering due diligence services, such as the Art Loss Register; (3) theme-specific databases on Nazi-looted assets and colonial contexts; and (4) academic and professional databases for provenance research, such as the Louvre’s open-access digital database, which was launched in 2021 and features more than 500,000 objects from the museum’s collections, or the Getty Provenance Index, which provides access to about 2.5 million items. The chapter seeks to demonstrate that digital databases on cultural property can (1) facilitate fact-finding in specific disputes; (2) serve as a professional or even legal benchmark for abiding by due diligence and similar norms; (3) enable information-sharing as a basis for “just and fair solutions” in the context of Nazi-looted artifacts, “colonial contexts,” and other circumstances that address past wrongs; and (4) promote a general value of transparency in a field previously dominated by opacity and secrecy.

While nations, societies, and individuals have always been engaged with both the tangible and intangible aspects of cultural objects, such as archaeological artifacts, artworks, and historical documents, the twenty-first century is seeing a significant shift in the law, ethics, and public policy that have long characterized this field. This book offers a comprehensive analysis of recent developments concerning cultural property. It identifies the underlying forces that drive these changes, focusing on the new political balance between source countries and market countries, the strengthening of cross-border lawmaking and law enforcement, the growing impact of provenance research and due diligence as legal, professional, and ethical norms, and the transformative role of digital databases. The book sets out normative principles for designing a better synergy of the hard-law and soft-law mechanisms that govern cultural property policy and markets. It proposes a property theory of ownership and custody of cultural objects and outlines a model of “new cultural internationalism” to promote cross-border collaboration on cultural heritage, including new restitution frameworks.

Chapter 2 portrays the changing legal landscape addressing the legality – or lack thereof – of the cross-border movement and trade of cultural property. It starts by identifying the key features of legal divergence across national legal systems, concerning both private law and public law aspects, and discusses how this disparity poses a challenge for dealing not only with past actions but also with the current features of the global market for cultural objects. It then provides an overview of the evolution of international institutions and legal norms related to cultural property, such as the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property,

1 United Nations Educational, Scientific and Cultural Organization (UNESCO), Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 823 U.N.T.S. 231

Chapter 5 seeks to identify the normative foundations of a property theory of ownership and custody of cultural objects. It begins by examining the case study of the current legislative, administrative, and judicial framework in Italy, which aims to grant cultural institutions an essentially eternal right to control the reproduction and use of images of their cultural holdings. It then addresses the redefinition of a “museum” adopted in 2022 by the International Council of Museums and the implications this may have for the role of cultural institutions. The chapter then seeks to delineate the contours of a property theory of cultural objects and the corresponding sets of in rem rights and in rem duties that should apply to cultural institutions as both proprietors and custodians, by reconsidering the role of “placeness” of cultural institutions and their collections. In particular, a theory of ownership and custody of cultural objects held by cultural institutions should refer to the link between culture and space in considering the mirror-image questions that have been at the center of legal, professional, and public attention, namely: does a cultural institution have an in rem right to appropriate the value components of cultural objects, such as by limiting or prohibiting others from using or reproducing images of items in its collection; and, conversely, does a cultural institution have an in rem duty, as a custodian of culture, to actively make accessible to the public images and other information on items in its collections?