Legal Aspects of the Mystification and Demystification of Cultural Property‪.‬

ABSTRACT Cultural property has long been mystified. Even today some people are still convinced that national cultural property has to be returned to the state of origin if such property is located abroad. Such demands for return may be a good case for return stipulations, settlements and exchanges. But if there is no such agreement between the parties, law courts have to decide the dispute. Law courts have to decide the dispute according to law. They do not normally have any discretion to deviate from statutory provisions and fixed case law. What they can do is this. They demystify cultural property issues and distinguish between certain types of art works and cultural items, e.g. archaeological items, human remains and holocaust art. This they do according to national provisions and according to international conventions or transnational law if implemented by national legislation. There are, however, at least five limitations to a return claim: bona fide purchase, statute of limitations, laches, no enforceability of foreign exports prohibitions unless the enforceability is recognised between State parties to a convention, no retroactivity of law making in national law as well as in international law. If such limitations apply, parties may settle their claim or find another solution. In any case no State is obliged to recognise claims for the return of foreign cultural property unless such property has been stolen, smuggled, confiscated or looted and no limitation of such actions is given. If there are still unanswered problems, parties may rely on forthcoming conventions, statutes, principles, and codes of ethics and they may already today settle their case according to these guidelines.