The ‘Old Paradigm’ – There are two prevalent doctrines in claims for the return of cultural property:

(i) ‘Cultural Nationalism’ – Proponents of this view believe that cultural objects belong within the boundaries of the ‘source’ nation of origin. (UNESCO Convention 1970, Article 2 and the Preamble.)

(ii) ‘Cultural Internationalism’ – Proponents of this view regard cultural property as being in the words of the 1954 Hague Convention – ‘the cultural heritage of all mankind.’

However, at the centre of this ‘dichotomy’ is a fatal ‘legal flaw’, because:

(i) cultural property cannot, being within any state’s sovereignty, be regarded as ‘Res Nullius’ (i.e. property belonging to no one); or

(ii) ‘Res Communis’ (i.e. property belonging to the whole world).

Furthermore, making cultural property ‘Universal’, logically contradicts the idea of ‘return.’

So, we need to create a ‘New Paradigm’.

My ‘Methodology’ – I have begun by examining the precedents, i.e. cases relating to cultural property, and by asking – ‘with what issues were these cases concerned?

I am now ‘tabulating’ instances of return, showing how claims for restitution of cultural property have been resolved.

According to Professor Jeanette Greenfield (see the Third Edition of her book – ‘The Return of Cultural Treasures’), this process will reveal the existence of three different ‘categories’ of issue:

(i) ‘Conservation’, which is an ongoing issue;
(ii) ‘Illicit trading’, which is a contemporary issue; and
(iii) ‘The physical return of cultural property which may be associated with illicit trading’ which is also a historical issue.

However, the ‘question of returning cultural property tends to become mixed up under these three headings without any distinction being drawn. When discussing conservation the concept of a “cultural heritage” may be relevant, whilst when considering return the concept of cultural property is relevant. If we examine the many definitions of cultural property the shortcomings are obvious. They are vague and they are subjective. While it may be satisfactory to define cultural property in this way within a national context, a fixed and objective criterion is necessary if the matter of cultural return is to be dealt with on an international footing, such as between states.’

(‘The Return of Cultural Treasures, Third Edition, by Jeanette Greenfield (2007), pp.365 and 366).

So, in order to develop a New Paradigm I also need to develop ‘criteria for return’.

Professor Greenfield advances ‘two basic criteria’ as the basis for determining return:

(i) the ‘means of acquisition; and
(ii) the ‘nature of the object’.

Both as a ‘Mediator’ and as a ‘Mediation Advocate’, I am also developing my own Legal and Ethical ‘Navigational Compass’, i.e. ‘Framework of Principles of Repatriation’, for discussion in my Monograph – see the ‘Mediation of Cultural Heritage Disputes’ page at www.carlislam.co.uk.