This paper demonstrates that analyzing the legal structure of the global regime for international trade in cultural objects by dissociating the various legal formants that build up this area of the law, or in other words, the various layers of regulation, may help underline the problems of coordination, effectiveness and enforcement of the legal regimes for the art market. Among the main challenges for the development of this area of the law it seems to be how to reconcile the idea of an economic value of cultural objects, entailing a licit tradability of culture, on the one hand, with the protection of cultural rights of individuals and communities, on the other hand. In this direction the paper shows that (a) in this matter traditional international hard-law is insufficient to gain a proper enforcement of any legal regime; (b) an important supplementing role is played by soft-law rules both in regulating and enforcing legal regimes for the protection of cultural objects, and that (c) a growing role in the enforcement process is left to adjudication approaches that can be nurtured by soft-law and/or can be oriented to convey cultural heritage protection into the domain of human rights law. In this latter perspective, enforcement of cultural heritage law through international investment law and arbitration is particularly considered.

STRUKTURA I SPROVOĐENJE GLOBALNOG PRAVA TRGOVINE KULTURNIM DOBRIMA: UPOREDNOPRAVNE PERSPEKTIVE (Structure and Enforcement of Global Trade Law in Cultural Objects: Comparative Law Perspectives)

FIORENTINI, FRANCESCA
2015

Abstract

This paper demonstrates that analyzing the legal structure of the global regime for international trade in cultural objects by dissociating the various legal formants that build up this area of the law, or in other words, the various layers of regulation, may help underline the problems of coordination, effectiveness and enforcement of the legal regimes for the art market. Among the main challenges for the development of this area of the law it seems to be how to reconcile the idea of an economic value of cultural objects, entailing a licit tradability of culture, on the one hand, with the protection of cultural rights of individuals and communities, on the other hand. In this direction the paper shows that (a) in this matter traditional international hard-law is insufficient to gain a proper enforcement of any legal regime; (b) an important supplementing role is played by soft-law rules both in regulating and enforcing legal regimes for the protection of cultural objects, and that (c) a growing role in the enforcement process is left to adjudication approaches that can be nurtured by soft-law and/or can be oriented to convey cultural heritage protection into the domain of human rights law. In this latter perspective, enforcement of cultural heritage law through international investment law and arbitration is particularly considered.
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EVROPSKI PRAVNIK
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11368/2872592
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