A Legal Pluralist Approach to International Trade in Cultural Objects

The paper assesses three of the major global issues concerning cultural property trade from the perspective of legal pluralism. The contribution does not deal specifically with legal pluralism itself, rather uses a legal pluralism approach to analyze and better understand the multi-layered dimension of the law(s) of trade in cultural property. Legal pluralism generally aims to underline the social and cultural dimension of law, thus showing how law is an open system, made of intertwining official and unofficial rules, produced by a variety of state and non-state actors. In the age of globalization, legal pluralism has thus become a useful prism through which to analyze the complexity of global legal regimes, including that governing the transnational trade of cultural movables, particularly pieces of art. The paper starts by outlining some of the global hard-law regimes that regulate the market of tradable movable property, that is the international law layer (paragraph 2) and the supra-national layers of the WTO and EU systems (paragraph 2.1). The problems arising from the interaction of these two systems are specifically highlighted (paragraph 3). The analysis then moves on to consider the role played by soft-law rules which have been developed worldwide by national and international organizations (paragraph 4). In particular, the report explains how unofficial rules have led to the development of alternatives to the transfer of title of cultural objects. These alternatives allow circulation of, and public access to, cultural property, while avoiding the legal problems associated with transfer of title (paragraph 5). Moreover, national and international organizations have also been involved in practical arrangements which have led to the buildup of registers, data banks, coordination and research activities, thus creating an infrastructure indispensable for the effective operation of the global legal regimes (paragraph 6). Then a further perspective is added to the analysis – that of the human rights dimension of the global trade of cultural property – by examining the clash between potentially conflicting values, such as a peoples’ right to dignity and self-determination, on the one hand, and the protection of the individual right to ownership, on the other. The aim of this paper is to determine how these two conflicting sets of human rights can be balanced and used to assist in the creation of an effective global regulatory regime (paragraph 7). The concluding remarks highlight how a legal pluralist approach to the global trade of cultural property helps identify four potential paradigms for future development in this field and one public global interest to be pursued by global regulators (paragraph 8).