مرکز منطقه ای اطلاع رساني علوم و فناوري - The Evaluation of the Recovery of Cultural Property by the Source Countries Based on Their Patrimony Laws in the Light of Barakat Case

Abstract :

In the context of the return of illegally exported cultural property out of the country of origin, it is a major problem to prove ownership rights over the objects. For registered and classified objects (public or private collections) it is easy to prove who owns the cultural property. However clandestinely excavated archaeological objects which have not been registered or classified will cause great difficulties in the lawsuits regarding the replevin cases. Because, the state’s claim will be based on its own blanket legislation vesting the state with ownership over the object found within its territory. This happens without the necessity of acquiring actual possession. In other words the country of origin will become owner ipso iure (by operation of law) when the object is found (even before it is found) without performing any further affirmative act of appropriation. In this respect the English Supreme Court gave very important decision in Barakat case. The court has recognised the patrimony law of Iran which vest in the state with ownership of cultural property discovered in Iran’s territory. Besides the court has made distinction between patrimony laws and export regulations and concluded that the recognition of state ownership based on the legislation of the country of origin will not be considered as enforcement of foreign public law in England. Because the claim based on state ownership does not involve the exercise or assertion of a sovereign right. The Barakat case will clearly effect other countries’ jurisprudence and help source countries to recover their cultural heritage in lawsuits.