Cultural Heritage Law and Trade of Cultural Objects: A Comparative Law Approach

Thanks to the prolific law-making activity of UNESCO and other factors, cultural heritage law has become a special branch of international law where comparative law analysis is scarce. In this essay I claim that the strong meta-legal component of cultural heritage law, which is apparent in its cultural and political attitude, together with its fragmented nature as a global legal regime, make it an ideal subject of analysis for comparative law. In particular, I apply to a specific branch of cultural heritage law, that is the law of the global trade in cultural objects, the comparative law approach of the dissociation of legal formants, developed by Rodolfo Sacco and his school in Torino. Then, I will combine this with the suggestions elaborated by Mauro Bussani in the doctrine of the stratification of the legal systems, borrowed from legal pluralism and adapted to the study of the Western legal systems. I will show that this combination of comparative law approaches enables one to fruitfully analyze and better understand the multi-layered dimension of the sources of the law(s) of trade in cultural objects. Comparative law as intended here helps detect paradigms of development and criptotypes shaping this area of the law, caught as it is between political aspirations and an operative meta-legal dimension the role of which is crucial for the successful enforcement of any legal regime.