Books Developments in PIL Scholarship

Estrella Faria on the Protection of Religious Cultural Property

José Angelo Estrella Faria (UNCITRAL) has published his Hague Lectures on the protection of religious cultural property in public international law and private international law (La protection des biens culturels d’intérêt religieux en droit international public et en droit international privé) in the Collected Courses of The Hague Academy of International Law (volume 421). 

The author has kindly provided the following English abstract:

The protection of religious cultural property has three dimensions: physical conservation and preservation of the property (material protection); measures aimed at guaranteeing access to cultural property and maintaining their religious or liturgical function (intangible protection); and finally, protection against dissipation and dispersion (localization and physical attachment). Public law protects these three dimensions through various preventive and repressive measures, which are supplemented by rules of private law governing the conditions of circulation of these goods. The course addresses certain aspects of the legal treatment of cultural property with implications for religious cultural property, both at the international and national level, and the way in which national law takes the specific rules and needs of religious communities into consideration. The course is divided in two chapters: the first focusing on the protection of “religious cultural property” under public international law; the second part dealing with their treatment under private international law. 

After an introduction that discusses the notion of “cultural property” and “religious cultural property”, the first section of chapter I summarizes the evolution of the relevant rules of public international law from the first codifications of the law of war until the development of a framework for the protection of “world heritage”.  The chapter explains the protection of “historical monuments”, “works of art” and other cultural property in the customary law of armed conflict and in the special regime of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.  It then focuses on the special treatment of “places of worship” in the customary law of armed conflict, in international humanitarian law and in international criminal law as reflected in the case law of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court. The second section of chapter I deals with the international framework for the protection of religious cultural property in times of peace.  It begins by discussing the place of religious cultural property in the 1972 UNESCO Convention on Concerning the Protection of the World Cultural and Natural Heritage and the possible tension between obligations to preserve cultural heritage and the worship or liturgical use of religious cultural heritage.  The role of the protection of religious cultural property in bilateral agreements is also considered, notably from the in the practice of concordats of the Holy See.  The section concludes with an analysis of the territorial attachment of religious cultural property within the framework of the 1970 UNESCO Convention on the Means of Prohibiting and of Ownership of Cultural Property, preventing the illicit import, export and transfer and the mechanisms for repatriation following wrongful removal.

The first section of chapter II examines the law applicable to the circulation of religious cultural property in private law and considers, in particular:  limits to the application abroad of mandatory rules concerning religious property and to the extraterritorial effect of export restrictions; the inalienability of cultural property religions; international application of the lex originis and the legal effect of internal rules of religious communities governing the management of their cultural heritage. The course concludes in the second section of chapter II discussing the conditions for a civil restitution or return action, including the right to sue and limitation periods, the law applicable to transfers of ownership and rules on good faith acquisition of religious cultural property. It presents several cases that illustrate the difficulty that religious communities and groups may face to obtain restitution of cultural property removed from places of worship and related premises in violation of rules governing their religious function and use. It also considers the conditions for the return of goods to the country of origin in the event of theft or illicit export and the effect of restitution on the right of ownership under the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of 19995 and the European Union Directive 2014/60 on the return of cultural objects unlawfully removed from the territory of a Member State.

More details, including the table of contents, can be found here.

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