Proprietary rights over cultural objects in a global world

• Pages: 583-598
• Author: Sabrina Ferrazzi

PROPRIETARY RIGHTS OVER CULTURAL

OBJECTS IN A GLOBAL WORLD

Sabrina Ferrazzi*

SUMMARY: I. INTRODUCTION. A DISTINCTIVE CROSSROAD OF INTERESTS.—

II. LEX REI SITAE AS A GENERAL PRINCIPLE OF PRIVATE INTERNATIONAL

LAW AND THE ISSUE OF FOREIGN PUBLIC LAWS.— III. THE INTERNATIO-

NAL LAW APPROACH.— IV. THE EMERGENCE OF «CULTURAL» CONFLICT

OF LAWS RULES.— V. FINAL REMARKS.

I. INTRODUCTION. A DISTINCTIVE

CROSSROAD OF INTERESTS

Cultural Heritage Law provides a special perspective for examining

the intertwining between private international law and rights in rem.

The art market is international by its very nature. It traditionally

trades highly collectable goods with almost an eternal market lifes-

pan. A cultural object may have been traded for centuries and may

have crossed numerous borders before entering the asset of its current

owner. This is why the international restitution of stolen or unlawfully

exported cultural objects appears to be one of the most critical and

controversial topics in the Art Law eld.

If, in theory, it is effortless to reach a universal consensus on the

general idea that owners should be granted the right to recover their

lost property, at the same time this very idea comes with the awareness

that the owners’ interest is not the only one at stake. Even when dealing

with non-cultural goods, legislators around the globe have developed

* Post-doctoral Fellow at the University of Verona (sabrina.ferrazzi@univr.it).

PRIVATE INTERNATIONAL LAW ON RIGHTS IN REM IN THE EUROPEAN UNION

DERECHO INTERNACIONAL PRIVADO SOBRE DERECHOS REALES EN LA UNIÓN EUROPEA

Maria Font-Mas (dir.)

ISBN: 978-84-1381-849-8

Madrid, 2024

pp. 583-597

DOI: 10.37417/PILRIRUE/26

Marcial Pons Ediciones Jurídicas y Sociales

Editado bajo licencia Creative Commons Attribution 4.0 International License

584 SABRINA FERRAZZI

different legal solutions to take into consideration, for instance, the

legal position of good-faith purchasers. When the object of the restitu-

tion shifts from common tradable goods to cultural objects, the clash of

interests is intensied by the specicities of cultural objects themselves

and by the numerous interests shaping the art world.

With regards to the former (i.e. the specicities of cultural objects),

cultural objects are typically non-fungible and non-perishable goods.

The cultural component embedded in certain objects has long been re-

cognized as an element worthy of distinctive regulation, able to shape

proprietary rights over cultural property in a way that diverges from

the ordinary legal regime. It is possible to nd the rst traces of such a

special sensitivity already in ancient times. The Ancient Roman institute

of the dicatio ad patriam, for example, established a legal bond between

a public space and the statutes there located so that their removal was

forbidden even if a statute was there placed by a private owner and the

very same owner wished to recover it 1.

Even, in modern times, in those socio-cultural contexts where pro-

prietary rights have been seen as absolute rights, a set of duties and

limits have been imposed on owners of cultural artefacts, to the point

that legal doctrine has referred to ownership over cultural property as

a right that binds. 2

The amount and variety of rules enacted worldwide illustrate the

importance of the exceptions to the traditional law of property. Depen-

ding on the legal system, such divergent rules have been dealing with

restrictions affecting the owner’s right to freely dispose of the property

for its own interest by, for instance, limiting the export of the goods

(e.g., ch. VI, Law of the People’s Republic of China on Protection of

Cultural Relics 3), reserving a right of pre-emption to the State (e.g.

art. 38 Spanish Cultural Heritage Law 4), providing for public access

to privately-owned cultural property (e.g. art. 28, Italian Code of

Cultural Heritage and Landscape 5), providing for a public power the

power to expropriate a cultural property for the pursuit of the national

cultural interest (e.g., art. 4(3) Eritrean Cultural and Natural Heritage

Law 6), prescribing conservative obligations (e.g., arts. 30-32 of the

Italian Code of Cultural Heritage and Landscape) or imposing infor-

mative duties to owners, thus, granting third parties to intervene and

1 On the dicatio ad patriam, see M. Falcon, «Dicatio ad Patriam», La collocazione in

pubblico di beni privati nella riessione dei giuristi romani, Naples, Jovene, 2020.

2 F. lonGoBucco, « Beni culturali e conformazione dei rapporti tra privati: quando la

proprietà ‘obbliga’», in Battelli, E., cortese, B., GeMMa, A., Massaro A. (eds.), Patrimonio

culturale proli giuridici e tecniche di tutela, Roma, Roma Tre Press, 2017, pp. 211-226.

3 中华人民共和国文物保护法 (2017年修正本).

4 Ley 16/1985 del Patrimonio Histórico Español, 25 June 1985.

5 Legislative decree, n. 42/2005.

6 Proclamation n. 177/2015.