‘The moral case for restitution’ is the title of one of my essays for the Diploma course in Art Law at the Institute of Art & Law in London. Underlying the moral case is a fiduciary theory of art. See the ‘Mediation of Art & Cultural Heritage Disputes’ page at www.ihtbar.com. In relation to both antiquities and cultural heritage (which includes landscape), there is a philosophical and legal nexus between:
(i)    the existence of ethical standards; and
(ii)   norms of behaviour.
Norms are linked to the existence of fiduciary duties. This is an evolving question that is linked to the concept of global fiduciary governance in the form of treaty-making and multi-lateral co-operation. My theory is that when art [‘A’] is of cultural significance, i.e. is recognised as being cultural property [‘CP’], it forms part of a recognised heritage. If then in either a narrow or a broad sense, it becomes part of civilization and a record of human evolution (i.e. part of the consciousness and collective memory of mankind), public duties do or should attach to possession. In particular, the possessor [‘P’] who owns A that is CP, is a custodian of the object [‘CPO’]. In which case, fiduciary duties attach to possession, e.g. a duty to preserve and protect the cultural property [‘DP’] (including an underwater archaeological site). If P is a state, these duties extend to protecting the CP in the event of war. Therefore, DP is a quintessentially fiduciary duty. The underlying premise is that every civilized society is a fiduciary of humanity, and so are their governments. There is also a relationship between the human environment, development and culture. The big question is ‘What ethical standards of behaviour do these duties give rise to?’   This is linked to:
(i)      international humanitarian law;
(ii)     the protection and preservation of cultural property; and
(iii)    illicit trafficking of art and antiquities.
The problem of illicit trafficking is further linked to:
(a)        organised crime;
(b)        money-laundering; and
(c)        terrorist financing.
Cultural heritage is of crucial importance to individuals and communities as part of their identity. Because cultural identity is part of human dignity, it is linked to human rights. Since cultural heritage requires memory, this applies to both tangible and intangible heritage, as material and physical heritage needs to be placed in both a historical and cultural context in order to understand its value.
When art becomes cultural heritage, a bridge reveals itself between public international law claims, and private law claims. The bridge is the ancient fiduciary doctrine of Jus Cogens.
Therefore, this theory is about the fundamental values humanity attaches to Art and Cultural Heritage. Those values translate into norms of behaviour that can become building blocks for reaching agreement in a mediation about art and cultural heritage in disputes which involve the competing interests of private parties and states.