Kurt Siehr

The Protection of Cultural Heritage and International Commerce

International commerce of cultural objects faces problems because national rules differ with respect to transactions concerning movable property in general and, especially, with regard to cultural objects. In all countries stealing is a crime. Therefore, the acquisition of title to property by theft is forbidden. National rules, however, differ in at least three respects: first, stolen property may be acquired bona fide; second, a bona fide purchaser may be protected by acquisitive prescription, and, third, there may be certain time limitations to a claim for the recovery of stolen objects. In many jurisdictions cultural objects enjoy specific legal regimes distinct from movables in general. Cultural objects may be qualified as inalienable {res extra commercium) or as objects of public property (domaine public, demanio pubblico). Cultural objects, even if treated as normal movables in domestic commerce, may be burdened by special rules for international commerce. For example, as objects of national cultural heritage, their export without an official permission may be forbidden. The conflicting national policies which clash in international transactions may be solved by different sets of rules: multilateral conventions; bilateral treaties; supranational law, which may be either directly applicable or indirectly applicable only in the form of harmonized national law; international customary law, and national rules of private international law. As will be seen, most of these sources are not common to all jurisdictions. Therefore, even the same problem may have different solutions in different countries.

Sabine Boos, Kulturgut als Gegenstand des grenzüberschreitenden Leihverkehrs (Cultural Property as Objects of Transnational Loans)

Sabine Boos, Kulturgut als Gegenstand des grenzuberschreitenden Leihverkehrs (Cultural Property as Objects of Transnational Loans) pp. 328. Duncker & Humblot, Berlin, 2006. ISBN 3-428-12034-5. Almost every important art exhibition also exhibits art objects on loan from domestic or foreign institutions or private owners. Recently, this lending policy has been severely threatened by third parties trying to attach art objects on loan from foreign countries and claiming to be the rightful owners of these objects, which were expropriated many years ago by the Nazis or stolen, converted, or confiscated abroad. Also, creditors of lending institutions may try to get hold of these objects and liquidate them. The Schiele affair, the Malewicz case, and the Russian-Swiss controversy about loans to the Fondation Pierre Gianadda at Martigny, Switzerland, from the Pushkin Museum in Moscow illustrate these dangers. Therefore, any study dealing with these problems and offering solutions for preventing or mitigating such clashes of interest is welcome. Boos devoted her research for a doctoral thesis, submitted to the University of Dusseldorf, Germany, to these problems, mainly those of a return guarantee given to the foreign lending institution with respect to art objects on loan for a local exhibition.

January 1, 2003–December 31, 2003

Brazils legislation no. 230/2002 goes into effect, mandating that all new public works projects must incorporate and pay for archaeological salvage and necessitated by the project. Enterprises must pay also for storage and public outreach, including heritage education. Diario Oficial da Uniao de 17 de dezembro de 2002.

The Jundeff Affair – Comparative Remarks on International Child Kidnapping and Judicial Co-operation

Josef Jundeff was born in Poland. In 1952 he left that country and settled in West Berlin. On a visit to Israel in 1963 he met Sara, an Israeli woman residing in Israel. Josef and Sara married in Tel Aviv in 1965 and immediately after the wedding ceremony they left Israel and established their matrimonial home in West Berlin. There two boys were born to the Jundeffs in 1967. Two years later legal skirmishes started between husband and wife in Berlin. A short period of reconciliation followed. In January 1973 the wife finally decided to separate from her husband and, accordingly, she instituted divorce proceedings in the District Court (Landgericht) of West Berlin. Shortly thereafter, without obtaining her husbands consent or a judicial authorization, Sara took the children and brought them to Israel.