INTRODUCTION
Cross-border situations can be governed by two or more legal systems, whose application may lead to different results. This causes the so-called conflicts of laws, which are to be solved through conflict-of-law norms. Such norms aim to solve conflicts of this type by stating which legal system is applicable to a certain cross-border situation with reference to a national or a foreign legal system. Rooted in a civil law tradition, Latin American countries have codified conflict-of-law norms in different ways. Frequently, these codifications dictate that the legal system of the same state must be applied. In that case, conflict-of-law norms are expressions of territoriality; states keep for themselves the solution of situations that can actually be connected to legal orders that are beyond the scope of legal and political action.
The territoriality principle has underlain conflict-of-law norms in Latin America since the first codifications were created in the nineteenth century. From that time on, one can identify two dimensions of that principle, both of which have political connotations. The first dimension, which was meant to be a means of protection from the former colonial power and other states,Footnote 1 implied the non-application of foreign laws (external dimension). The second one, which has been less studied from the conflict-of-law perspective, translates into the non-recognition of normative systems of Indigenous groups living in their territories since pre-Columbian times (internal dimension). Manifestations of both external and internal dimensions of territoriality can still be found in Latin American legal systems. This article primarily aims to look at the internal dimension of the territoriality principle, considering Latin America’s cultural diversity and some Indigenous peoples’ human rights.
Consider the example of an Indigenous community in a Latin American country that has lost some cultural objects, such as textiles with a religious or cultural value for the community. The textiles were taken by local individuals who sold them to antiquities dealers. Then, the textiles were acquired by a museum or a private collector in another country. Years later, they were returned to the government of the Latin American country. The question here raises the issue of the absence of specific legal norms in Latin American countries that compel the state to consider the Indigenous communities while deciding the ultimate destination of such kinds of cultural objects.
One way of addressing how the internal dimension of territoriality negatively impacts the restitution of Indigenous peoples’ cultural property will be proposed, having looked at the so-called interpersonal law doctrine. In the field of conflict of laws, the interpersonal law doctrine implies that in one country there are different legal systems for different religious or cultural groups. Thus, contrary to interstate law or interregional law, the selection of the applicable law in interpersonal law is made on the basis of religious or ethnic grounds, instead of geographical ones. As will be seen, the question about whether interpersonal law in this sense is already embodied in Latin American legal systems could be answered in two different ways: First, interpersonal law does not exist in Latin American countries, such that their conflict-of-law norms do not embody specific rules that refer to interpersonal law situations considering Indigenous peoples’ law, and, second, interpersonal law does exist in Latin American legal systems because (1) Latin American states are part of several binding international instruments on human rights, such as the International Labour Organization’s (ILO) Convention no. 169 Concerning Indigenous and Tribal Peoples in Independent Countries,Footnote 2 which contain Indigenous peoples’ rights to participation and to control their own economic, social, and cultural development; (2) based on ethnic/cultural diversity/pluralism, Latin American states recognize the basic rights of Indigenous peoples in their constitutions and legal regulations; (3) there exist the so-called Indigenous jurisdictions; and (4) the application of Indigenous law has been recognized by some national courts not only in criminal affairs but also in family and property matters.Footnote 3
While the first answer is based on a strict conflict-of-law approach, the second answer is built upon a material, result-oriented perspective, which is focused on (justice based on) human rights. Both answers are right. Let us begin by saying that the second answer is correct because one can actually find in Latin American legal systems specific human rights material norms that permit Indigenous law to be applied to situations that are traditionally governed by states’ law. But calling attention to the absence of codified conflict-of-law norms aimed at interpersonal law situations involving Indigenous peoples, as the first answer does, calls upon us to consider that codified conflict-of-law norms contribute to legal certainty, while, at the same time, they serve to accomplish the goals underlying the second answer, which is focused on (justice based on) human rights.Footnote 4 In this light, this article proposes a conflict-of-law rule, which includes features of the interpersonal law doctrine and can serve to appropriately satisfy some Indigenous peoples’ rights regarding cultural property that are recognized in international public law instruments. Such a rule could be included in a legal instrument on cultural property matters.
TERRITORIALITY AND (CULTURAL) PROPERTY: THE LEX SITUS RULE IN LATIN AMERICA
Most conflict-of-law systems around the world follow a rule, according to which the creation, content, exercise, and transfer of property rights are governed by the legal system of the state where the property is located at the time of the transaction.Footnote 5 This rule is known as the lex situs rule. In Latin America, the Chilean Civil Code,Footnote 6 written by Andrés Bello and adopted in 1855, includes the application of the law of the location in Article 16, which applies to all kinds of property—movable or not—and is written in a unilateral way so that the Chilean law is applicable to every property located in Chile’s territory.Footnote 7 The main reason why it was formulated in that way was to impede the application of foreign laws.Footnote 8 However, it also has consequences internally, to the extent that it does not recognize differences based on traditional property and ownership conceptions of Indigenous peoples, which are expressions of the cultural diversity of Latin American countries.
The 1855 Chilean Civil Code was taken as a model by most Latin American states, and it still influences conflict-of-law norms in the region today. The same is true in relation to the territoriality principle it contains, of which the lex situs rule is an expression.Footnote 9 Thus, in addition to Chile, most Latin American conflict-of-law codifications still contain a unilateral formula of that rule. The lex situs rule can undermine the success of Indigenous peoples’ claims for international restitution of cultural objects in several ways, for instance, because of the protection of good faith acquisitions or on account of statutes of limitations in the states where such objects are currently located. In this sense, problems related to the lex situs rule emerge not only in relation to Indigenous peoples’ claims for restitution of cultural property but also in relation to claims made by the government of the states of origin themselves or even by private individuals—in spite of the fact that usually the country of origin’s laws declare state ownership of some cultural objects (for example, archaeological objects) and private individuals can hold ownership rights protected by private law. But the lex situs rule is also problematic when it exists in states for which the cultural objects are destined, to the extent that the rigidly territoriality-based way in which the lex situs rule is formulated in Latin American international private law systems leaves no room to consider Indigenous people’s rights in the conflict-of-law framework, including their rights to cultural property.
CONFLICT OF LAWS AND CULTURAL DIVERSITY: THE INTERPERSONAL LAW DOCTRINE
The interpersonal law doctrine presupposes the existence of states with pluri-legislative systems. Pluri-legislative systems are classified into two groups. In both types of pluri-legislative systems, there can be situations that, in principle, are governed by several laws—that is, there can be internal conflicts of law. The first group includes those systems based on geographical (territorial) grounds. Systems in this group could adopt a variety of forms—for example, they can be multi-local, multi-state, or multi-regional, depending on each state’s internal territorial and political division and organization. The second group is formed by those pluri-legislative systems based on personal grounds. Here, different laws are applicable to different religious or ethnic groups, irrespective of geographical (territorial) divisions. Thus, interpersonal law rules deal with the way in which one should select the law that must be applied to a situation, to which several laws—including different ethnic or religious laws—could be applicable, in principle. Generally speaking, there are two main perspectives from which interpersonal law rules can be conceived and, then, embodied in legal systems.
First Perspective: Diversity in a Foreign Legal System
In many countries, interpersonal law rules are conceived as those rules that answer the question about how to apply the law of a foreign state that has a pluri-legislative system based on personal grounds when the application of such a law is ordered by a conflict-of-law norm.Footnote 10 In other words, these countries consider the remission to the law of a foreign pluri-legislative system. This is the case in international private law codifications in Latin America. Article 2056 of the Peruvian Civil Code,Footnote 11 for instance, states as follows: “When in the applicable foreign law various legal systems coexist, the conflict between local laws will be resolved in accordance with the principles in force in the corresponding foreign law.” The same rule is included in the International Private Law Act of VenezuelaFootnote 12 (Article 3). Article 2595, letter b, of the Argentinian Civil and Commercial CodeFootnote 13 is similar, although it additionally refers to the law with the closest connections:
If there are several legal systems in force with territorial or personal competence, or different legal systems are followed, the applicable law is determined by the rules in force within the state to which that right belongs and, in the absence of such rules, by the legal system in dispute that presents the closest connections with the legal relationship in question.Footnote 14
Second Perspective: Diversity in the National Legal System
Interpersonal Law in Pluralistic Legal Systems
Interpersonal law may also consider pluralistic internal legal systems, which are pluri-legislative on religious or ethnic grounds and exist because of the “coexistence of several racial groups or tribes, each of which is governed by its own laws.”Footnote 15 In this sense, it refers to “conflicts [of laws that] may arise from the coexistence of several racial groups or tribes, between adherents of particular religious communities, between members of splinter groups within the same faith, or between classes.”Footnote 16 In other words, it implies that “irrespective of space, conflicts [of laws] occur also as a result of a coincidence of groups.”Footnote 17 Those diverse laws are not an exercise of sovereign powers; in fact, their recognition by the state is the condition for their effective operation.Footnote 18
The interpersonal law doctrine from this perspective was developed in the former Dutch East Indies (currently Indonesia), where a non-uniform, but pluralistic, system of civil law was created. This system was valid for the main population groups identified by the state: Europeans, foreign Orientals, and native Indonesians.Footnote 19 Its rules aimed to determine which law has to be applied to situations in which peoples of different groups enter into legal transactions. Such situations could concern any legal matter, such as contracts, marriage, agrarian law, or unlawful acts.Footnote 20 The interpersonal law doctrine developed in Indonesia was later introduced to some African countries, where there already existed a native administration of justice in self-governed lands, in which conflict-of-law situations had to be solved.Footnote 21 In the form of interreligious law, interpersonal law can still be found in different parts of the world, especially in Asia and Africa. It has actually gained in importance in the last two decades,Footnote 22 contrary to the situation four decades ago.Footnote 23
In countries with pluri-legislative systems based on personal grounds, interpersonal law solutions have been developed from both jurisdictional—that is, the indication of the competent court—and applicable law perspectives. Depending on the recognition and regulation in each state’s legal system, these solutions can take place either in conflict-of-law rules adopted by the state itself or through the recognition of the group’s own regulatory system.Footnote 24 In this sense, the following three types of solutions have been identified:
1. Systems that operate within their own sphere, separately from the state and other legal systems—this happens with religious normative systems, as in the case of canon law in the Catholic Church and laws of other Christian churches.
2. Systems that are enforced by state courts—this modality is found in countries such as Egypt, Tunisia, Algeria, Morocco, Sudan, Greece, Indonesia, India, Pakistan, Bangladesh, and Malaysia.
3. Systems that are administered by the authorities within the group itself, which exercise jurisdiction based on delegation made by the state, as in Syria, Iraq, Jordan, Libya, Lebanon, and Israel.Footnote 25
Although pluri-legislative systems based on personal grounds may be tied in some way to a territory, the territorial element is not essential to them.Footnote 26
Situation in Latin America
After Latin American countries obtained their independence in the nineteenth century, a variety of norms of national and Spanish origin were applicable. The solution to that kind of legal chaos was to create uniform laws in each of the new republics.Footnote 27 In the independence process, some states became federalist so that these countries incorporated pluri-legislative systems on geographical grounds, but, from the personal—religious or ethnic—viewpoint, laws were uniformly established.Footnote 28 Thus, conflict-of-law rules were included in the codifications also on a uniform basis.
However, particularly during the last three decades, Latin American cultural diversity has been recognized in constitutional and legal orders. This recognition has been related to debates on Indigenous issues in the international arena as well as to the inclusion of Indigenous peoples’ rights in international public law instruments, especially the ILO Convention no. 169 and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).Footnote 29 Before this development began to consolidate, the diversity of normative systems did not lead to the existence of real conflicts of laws— Indigenous and non-Indigenous—within national systems of Latin America. Indigenous authorities’ competence to apply their own normative systems was not recognized by the state, nor did state courts apply those norms.Footnote 30 Since the complexities derived from the existence of Indigenous normative systems were not fully recognized by states, they could not operate effectively. One consequence of such a scenario was that the internal legal diversity of Latin American countries has not been studied from an interpersonal law point of view, and conflict law literature in general has neglected this issue. It can be said, then, that the relevance of the interpersonal law doctrine in Latin America would go hand in hand with the development of Indigenous peoples’ rights at the international level as well as with the constitutional changes that have taken place in the countries of the region during the last decades.
From the conflict law perspective, it does not seem possible to ensure that the legal norms that recognize and develop the rights of Indigenous peoples at the national level can properly be considered conflict-of-law norms in the sense of choosing the applicable law. The verification of this latter assertion requires an exhaustive analysis of each of the normative instruments. But, for now, it can be said with certainty that Latin American legal systems have used the method of attribution of jurisdiction to the authorities of Indigenous groups themselves.Footnote 31 An example of this is a decision by the Second Court of First Instance in Civil, Commercial and Agrarian Matters in the state of Anzoátegui in Venezuela on 22 April 2008, which concerned the rights on improvements to a property. Both the claimant and the defendant were members of an Indigenous community. The Court declined the jurisdiction to hear the case, staying the Indigenous authorities’ jurisdiction and competence, according to constitutional and legal provisions.Footnote 32 Other examples relate to divorceFootnote 33 and adoption.Footnote 34 Reference can also be made to a decision regarding the succession of the Nasa community in the department of Tolima, Colombia. After the death of the father, a piece of land was to be divided among the heirs. According to the traditional laws of the Nasa people, descendants who leave the family for more than 10 years lose their inheritance rights. Such rights are recognized only for those who, having left for justified reasons, continue to “fulfill their community obligations as indigenous and help their families ... when parents die, descendants agree and seek to the indigenous authority ... to carry out the division of inherited property.” In this case, a descendant, who left the community 25 years ago and had not attended to her parents during their old age, sued her brothers before the ordinary state courts,Footnote 35 against which the other descendants resorted to the special Indigenous jurisdiction. The Indigenous authority decided to assume the competence to carry out the distribution of the inherited property according to community norms.Footnote 36
Thus, the pluri-legislative nature of Latin American states, based on personal—religious or ethnic—grounds, seems to be uncontestable today. Nevertheless, besides new codifications and regional developments (for example, in the framework of the Organization of American States), conflict-of-law rules currently maintain characteristics of those adopted in the nineteenth century. As shown, while some conflict-of-law codifications of the region take into account the pluri-legislative nature of foreign legal systems, they do not consider their own domestic legal systems as pluri-legislative systems themselves. In this context, the attempt to give Indigenous peoples’ normative systems an autonomous and absolute character seems to have produced the effect of dividing instead of uniting.Footnote 37 In terms of effectiveness, as well as clarity and legal certainty, it would be advisable to promote integration through state legislation.
However, it must be taken into account that, when recognizing Indigenous peoples’ rights at the national and international levels, it has not been the purpose of the Latin American states to modify or supplement Indigenous legal systems. In Latin American countries, as in other countries with an Indigenous population, the codification of Indigenous peoples’ normative systems has been rejected, based on different arguments, but especially because of the risk of petrifaction. Colombia is perhaps the country in Latin America where most attempts have been made to systematically address the cultural and legal diversity recognized in constitutional and legal norms. This has taken place in judicial decisions and literature mainly from the criminal law perspective,Footnote 38 not from the conflict-of-law viewpoint. Nevertheless, there has not been a clear systematization of Indigenous peoples’ normative systems, their relationship to each other, or their relationship with the state’s legal system. This situation has called into question the existence of a true legal pluralism in Colombia.Footnote 39
Additionally, from a legal—rather than political or anthropological—point of view, cultural (and legal) diversity has been observed only within the framework of public law, particularly within the sphere of international public (human rights) law or within the sphere of constitutional law. Although the recognition of Indigenous peoples’ rights takes place in those spheres, and their limits are drawn there, it does not seem enough to see cultural (and legal) diversity only from these perspectives. Each of these legal spheres has its own theoretical and normative tools, which are different from those that have been constructed within the conflict-of-law framework. Conflict-of-law norms are also called to respect and to materialize human and fundamental rights in cross-border situations between private subjects, whether individuals or collectivities. As shown, the doctrine of interpersonal law has been developed in the conflict-of-law sphere in the legal systems of the above-mentioned countries. Thus, observing cultural (and legal) diversity from the conflict-of-law perspective can offer the possibility of analysis, where specific legal tools may be found to respond not only to Indigenous peoples’ restitution claims but also to accomplish states’ obligations contained in international human rights instruments.
INDIGENOUS PEOPLES’ HUMAN RIGHTS REGARDING CULTURAL PROPERTY
Histories and characteristics of Indigenous peoples around the world are similar in many senses. Along with several shared circumstances, such as uprooting or extreme poverty, stands the fact that their sacred and cultural objects are stored in foreign museums and private collections, which is, to a great extent, the result of colonization and exploitationFootnote 40 or, in general, the consequence of an asymmetrical history.Footnote 41 Nowadays, Indigenous peoples’ interests in their cultural property have to be observed through the prism of human rights. However, it has to be taken into account that, although the 2007 UNDRIP constitutes a milestone in the international recognition of Indigenous rights, it has a non-binding character. That is why in this section reference will be made to the ILO Convention no. 169 and the International Covenant on Economic, Social and Cultural Rights (ICESCR) as international binding instruments.Footnote 42
Certainly, the function, or main goal, of pluri-legislative systems based on personal grounds, and of interpersonal law rules that address conflicts of law emerging in such systems, is not to protect minorities but, rather, to recognize each social group’s particulars.Footnote 43 However, it does not mean that they cannot serve such a goal, satisfying not only formal justice, in the realm of conflict of laws, but also material justice, in the realm of human rights. Indigenous peoples do not lose the rights they hold according to international human rights instruments as a result of the fact that cultural objects valuable for them are now in the hands of a third person or institution or in a foreign country, if such a situation has occurred without their consent.Footnote 44 Indigenous peoples’ consent for using their cultural patrimony has to be seen as an expression of their right to self-management, which is included in Article 7, paragraph 1,Footnote 45 and Article 8, paragraphs 1 and 2,Footnote 46 of the ILO Convention no. 169, which has been ratified by 15 Latin American countries,Footnote 47 as well as an expression of the self-determination principle.
More specifically, it is necessary to attend to the protection of cultural diversity within the framework of the right to participation in cultural life, included in Article 15, paragraph 1(a), of the ICESCR, which has been ratified by all Latin American countries. The article states: “1. The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life.” This right has been interpreted by General Comment no. 21 on the Right of Every Person to Participate in Cultural Life (Article 15, paragraph 1(a)) of the ICESCR, which was adopted in 2009 at the forty-third session of the Committee on Economic, Social and Cultural Rights (CESCR). According to the CESCR, the first aspect that must be considered is that the right to take part in cultural life is interdependent of the right of all peoples to self-determination, which is established in Article 1 of the ICESCR. Additionally, it has to be taken into account that this right is a collective right so that it can be exercised individually or by a person in association with others,Footnote 48 considering that culture is “an interactive process whereby individuals and communities, while preserving their specificities and purposes, give expression to the culture of humanity … as the creation and product of society.”Footnote 49 With regard to Indigenous peoples, the CESCR stresses that “[t]he strong communal dimension of indigenous peoples’ cultural life is indispensable to their existence, wellbeing and full development.” In addition, it is worth noting that Indigenous peoples, as collective subjects, “shall enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination,” as stated in Article 3 of the ILO Convention no. 169.
Another aspect to consider is that the right to take part in cultural life, as it has been interpreted by the CESCR, implies several obligations to states that have ratified the ICESCR, including Latin American states. Among these obligations, some are especially relevant regarding the existence of conflict-of-law rules referring to the law applicable to situations involving objects with cultural value for Indigenous peoples. Thus, within the framework of Article 15, paragraph 1(a), of the ICESCR, states must take measures to provide access to and preserve cultural goods.Footnote 50 That means that states shall ensure that Indigenous peoples and their members know and understand their own culture so that they can follow a way of life associated with the use of cultural goods as well as with “resources such as land, water, biodiversity, language or specific institutions” and benefit from their cultural heritage.Footnote 51 In particular, Indigenous peoples have “the right to act collectively to ensure respect for their right to maintain, control, protect and develop their cultural heritage.”Footnote 52 All of this cannot be properly developed if Indigenous peoples are illegitimately deprived of cultural objects in whose return they are interested.
In general terms, the CESCR has underlined that
the obligation to respect requires States parties to refrain from interfering, directly or indirectly, with the enjoyment of the right to take part in cultural life. The obligation to protect requires States parties to take steps to prevent third parties from interfering in the right to take part in cultural life. Lastly, the obligation to fulfil requires States parties to take appropriate legislative, administrative, judicial, budgetary, promotional and other measures aimed at the full realization of the right enshrined in article 15, paragraph 1 (a), of the Covenant.Footnote 53
In this context, a conflict-of-law rule, which indicates what law must be applied to Indigenous peoples’ claims for restitution of objects with a cultural or religious value for them, could support the protection of the above-mentioned Indigenous peoples’ rights and the fulfillment of those three facets of states’ obligations in that respect.
INTERPERSONAL LAW DOCTRINE AND INDIGENOUS PEOPLES’ CULTURAL PROPERTY: A PROPOSAL
The following proposal does not aim to offer a general solution to conflicts of law emerging from interpersonal law situations related to Indigenous peoples living in a particular country, although it could contribute to a future conception of a kind of “elliptical” conflict-of-law rule, following the terminology used by Symeon Symeonides.Footnote 54 Neither does it pretend to formulate a new version of interpersonal law for all Latin American countries. In particular, this latter point would be unrealistic. Its goal is only to offer a possible way of dealing with the return of Indigenous peoples’ cultural property from a conflict-of-law perspective, in which one could find some features of the interpersonal law doctrine. As will be seen, our proposal serves to satisfy Indigenous peoples’ repatriation claims, which were included in the 1993 Maatatua Declaration on Cultural and Intellectual Rights.Footnote 55 In this declaration, Indigenous peoples recommended to states, as well as to national and international agencies and the United Nations, that “Indigenous cultural objects held in museums and other institutions must be offered back to their traditional owners.”Footnote 56
The better starting point to introduce our proposal is a hypothetical case, which can help us find a “hypothetical pattern.”Footnote 57 Let us suppose that an Indigenous community lost a group of cultural objects, for example, wood sculpturesFootnote 58 or textilesFootnote 59 with a religious or cultural value for the community.Footnote 60 The objects were taken by local individuals, who sold them to antiquities dealers. Some years later, the objects were sold in a country whose legal system allows the acquisition of movables property without regarding the legal provenance of the objects. One could think, for instance, of Article 464 of the Spanish Civil Code, according to which “possession of movable property, acquired in good faith, is equivalent to title,” or Article 1153 of the Italian Civil Code,Footnote 61 which more specifically states: “The person to whom movable property is alienated by those who do not own it, acquires ownership through possession, provided it is in good faith at the time of delivery and there is a qualification suitable for the transfer of ownership.”
This situation refers to an object of cultural value for an Indigenous people, which is, or will be, returned from abroad. The question to answer here is which law should be applied to decide the final destination of the object. Thus, the domestic law of the state of origin, where the Indigenous people live, could include a conflict-of-law rule as follows:
If an object of cultural value for an indigenous people (community) is (to be) returned to the national territory (of the state it inhabits), the final destination of such object is governed by the law of that indigenous people (community), unless that indigenous people (community) decide that it be governed by the national law of the state.
There can be two moments in the application of this rule. First, the situation is solved by means of Indigenous (substantive) law. Second, the situation is solved by means of (substantive) national law because of a remission made by the Indigenous law. This rule is built upon the recognition of the right to self-management, as it is included in the ILO Convention no. 169, which, more than a mere consultation, is an expression of the self-determination principle.
This conflict-of-law rule might bring more clarity and legal certainty not only to the domestic authorities, but also to the foreign ones, whose conflict-of-law systems could contain a norm such as the one included in the Introductory Act to the German Civil Code or in the Argentinian Civil and Commercial Code. Article 4, paragraph 3, of the Introductory Act to the German Civil Code,Footnote 62 for instance, contains a remission to the whole foreign law (Gesamtverweisung).Footnote 63 It is possible to consider that such a remission includes non-codified norms—for example, Indigenous law—as a part of the legal system, if it is so governed by the foreign law. Therefore, the application of such a law becomes easier if it is included in the codified legal system of the foreign state whose legal system is to be applied.
At this point, an important question is how the authorities of a country, whose legal system contains a conflict-of-law rule like the above-mentioned Article 2595, letter b, of the Civil and Commercial Code of Argentina, come to apply the law of the country of origin of the object of cultural value for an Indigenous people, instead of its own law or the law applicable according to the lex situs rule. This leads to consider the application of the lex originis.Footnote 64 In general terms, there are three possibilities for applying the lex originis. First, national courts may consider that the particulars (factual and legal circumstances) of the case lead to restitution based on the law of the country of origin—for instance, because it is the law with the “closest connection” to the case.Footnote 65 Such a solution has been recommended by the 1991 Resolution on the International Sale of Works of Art from the Angle of the Protection of the Cultural Heritage, which was devised by the Institute of International Law.Footnote 66 One could also look at the rigid character of the lex situs rule and consider that there exists an axiological loophole because the lex situs rule does not take account of the protection of cultural property, which is a general value protected by binding international instruments—in particular, the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural PropertyFootnote 67—that can be better secured by the lex originis of the object.Footnote 68
Second, a national (or supra-national/regional) law can contain a specific exception to the lex situs rule in relation to cultural property. Versions of this option are diverse; for instance, remissions to the lex originis rule have been adopted in Belgium’s Code of Private International LawFootnote 69 (Article 90); Bulgaria’s Private International Law CodeFootnote 70 (Article 70); and Directive 2014/60 of the European UnionFootnote 71 (Article 13).
Third, a possible codified conflict-of-law norm, which could be included in an international public law instrument (treaty), could state that if an Indigenous cultural object is returned from one state to the state where the corresponding Indigenous people live, with both states having ratified the respective international treaty, the final destination of such object is governed by the national law of the last state. This remission should be to the whole law of the state of origin; thus, the intervention in the property concepts of states—what Karolina Kuprecht has seen as an obstacle to an international right to restitution—would be reduced.Footnote 72 However, at the international level, there could also be a direct remission to the application of Indigenous law, to the extent that, as Kuprecht says, “the international community is willing to work towards a privilege of indigenous peoples in cultural property issues including repatriations.”Footnote 73
In any of those three scenarios, a conflict-of-law rule in the national legal system of the state of origin, which refers to the direct application of Indigenous law, makes more sense. The latter scenario, which refers to the remission to the state of origin by means of an international treaty, would be preferable for three reasons: (1) an international treaty could also directly remit to the Indigenous (substantive) law, in similar terms as the rule that has been proposed to be adopted at the domestic level; (2) the international community has already expressed a will to protect specific Indigenous rights, like those referred to as cultural property; and (3) Indigenous people’s interests have been recognized in the most important international treaty protecting cultural property from an international private law perspective—that is, the Convention on Stolen or Illegally Exported Cultural Objects (UNIDROIT Convention).Footnote 74 The UNIDROIT Convention does not contain a remission to the application of Indigenous law nor of the law of the country of origin. However, its Article 7, paragraph 2, does allow return claims on illegally exported cultural objects that were “made by a member or members of a tribal or Indigenous community for traditional or ritual use by that community and the object will be returned to that community,” contrary to the general rule that prevents claims on those objects whose export is legal at the time of the claim and those that were exported during the lifetime of their creator or for a short period thereafter. Figure 1 serves to better illustrate the way in which the remissions to the law of the state of origin and/or to the law of the Indigenous community could work.
Figure 1: Scheme of remissions following the proposed rule
CONCLUDING REMARKS
As can be seen, territoriality has played an important role in the conflict of laws in Latin America. The way that territoriality has been rooted in conflict of laws has led to the fact that this discipline has torn apart the region’s cultural diversity as well as the legal diversity related to it. This has also led to the neglect of, among other issues, questions referring to the restitution of cultural property of Indigenous peoples from the viewpoint of the conflict of laws. Additionally, the regulation of the lex situs rule, which has been identified as one of the main obstacles to the restitution of such kind of property, is attached to territoriality as well. Although some states in the region have introduced important reforms in their conflict-of-law codifications in recent years, such circumstances have not been taken into account so far. In any case, one has to concede that finding concrete ways to overcome such issues is a difficult task. However, the creation of legal mechanisms for recognizing Indigenous peoples’ interests in getting back cultural objects is an obligation for states, according to international public law instruments, especially ILO Convention no. 169 and the ICESCR, which have a binding character and have been ratified by most Latin American states. To that end, introducing a conflict-of-law rule like the one proposed here seems achievable in the present general context of Latin American legal systems.
ACKNOWLEDGMENTS:
This article derives from research carried out at the Max Planck Institute for Comparative and International Private Law in Hamburg, Germany, which was supported by a grant from the same institute. The author would like to thank the referees of International Journal of Cultural Property for their helpful suggestions.
