By Francesco Francioni, James Gordley
The assumption of cultural historical past as an 'international public solid' might be traced again to the Preamble of the 1954 Hague conference for the security of Cultural estate within the occasion of Armed clash, in line with which "damage to cultural estate belonging to any humans whatever potential harm to the cultural history of all mankind". How this concept of cultural background as a world public stable will be reconciled with the potent enforcement of defense norms is the topic of this research. Bringing jointly international specialists in preserving cultural historical past, Enforcing International Cultural background Law examines the several ways in which cultural history estate might be secure, together with safety on the overseas point, enforcement in family courts, and the function of other dispute solution mechanisms.
The publication is split into 3 sections. the 1st part assesses foreign legislations and analyzes the interplay among foreign and household norms of private and non-private legislations. It discusses the several tools of overseas enforcement, the position of foreign and combined legal tribunals and courts, and the potential for safeguarding cultural history in instances of armed clash. the second one part addresses the function of nationwide courts, discussing such subject matters as: boundaries to household enforcement of overseas norms, the refusal to implement international legislation, the trouble of territorial barriers when it comes to underwater history, and the applying of legal sanctions by way of family courts. the ultimate portion of the publication surveys possible choices to the criminal enforcement of the norms retaining cultural history, together with arbitration, tender legislation, and diplomacy.
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Additional info for Enforcing International Cultural Heritage Law
But today an intense interaction occurs also in a ‘vertical’ dimension; that is, between national courts and international mechanisms of dispute settlement. National courts can be catalysts in accelerating the settlement of a cultural property dispute at the international or transnational level. One may recall the Altman case, in which the Supreme Court of the United States held that the Government of Austria could not enjoy sovereign immunity in relation to a civil action brought before American courts for the restitution of a series of valuable paintings (Klimt) that Austria had obtained as a consequence of Nazi persecution of Austrian Jews.
1920) 95, at 122 (hereinafter 1919 Commission). ⁴⁴ Eighth recital, preamble, 1907 Hague IV Convention (‘Martens clause’). ⁴⁵ 1919 Commission, see earlier note 43, at 114–115. ⁴⁶ Arts. 42–46, Section III, 1907 Hague IV Convention; 1919 Commission, see earlier note 43, at 19. ⁴⁷ See Art. 228, Treaty of Sèvres. As a consequence of the United States’ dissenting report, no provision for the prosecution of crimes against ‘the laws of humanity’ was included in the peace treaties with Germany, Austria, Hungary, or Bulgaria.
It may be useful to recall that the idea of ‘legal order’ (ordinamento giuridico, ordonnoncement juridique, Rechtsordnung) emerged at the beginning of the 20th century largely as a reaction to the dominant theories of legal positivism. A sophisticated conceptualization of it can be found in the work of a Sicilian jurist, Santi Romano, whose ground-breaking book L’Ordinamento giuridico, published in 1907, is premised on the idea that law as a legal order is not the sum total of binding norms, as assumed by legal positivism, but is rather the underlying social structure made up of the individual and collective beliefs, practices, and shared inclinations of members of the society, and the material organization that is the * Professor of International Law, European University Institute, Florence.