At the intersection of ‘Law’ and ‘Ethics’ in the Mediation of a Cultural Heritage Dispute lies the ‘Fiduciary Principle’ under ‘International Law’, of the ‘Inalienability of Sovereignty’ through the unilateral action of a foreign power.

This is relevant when considering the circumstances in which an artefact/antiquity was acquired, e.g. by transfer as a result of ‘Coercion’ during a period of occupation.

‘Fiduciary principles play a prominent role in the International Law of Occupation. As one leading scholar has observed, the foundational principle upon which the entire law of occupation is based is the principle of Inalienability of Sovereignty through unilateral action of a foreign power.

Accordingly, when a state establishes effective control over foreign territory, its international legal status is conceived to be that of a Trustee who exercises only temporary managerial powers until the occupation ends. …

An occupant also bears a variety of proscriptive fiduciary duties. It must respect unless absolutely prevented, the laws in force in the country. … Nor may an occupant confiscate private property, [or] destroy property without military necessity. …

Moreover the occupant serves only as administrator and usufructuary of public buildings, [and] real estate … belonging to the hostile state, and situated in the occupied country.

It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct, avoiding wasteful or negligent destruction of the capital value … Contrary to the rules of good husbandry. … [This principle for example obliges the occupier to protect public monuments].

For centuries, international lawyers and statesmen have endorsed the principle that a State’s Sovereign authority is held in Trust for the benefit of its people.’

(Criddle, Paul B., Miller, Paul B., & Robert H. Sitkoff , Editors (2019) The Oxford Handbook of Fiduciary Law, Oxford University Press, pp.356 & 358-9).

I will examine and discuss this foundational legal principle of ‘Civilization’ in my forthcoming book – the ‘Mediation of Cultural Heritage Disputes.’

This also bears upon the availability of remedies in the English High Court based upon the Tort of ‘Conversion’ (which protects property rights), and ‘Constructive Trust’.

Under the English Law principle of ‘Nemo Dat Quod Non Habet’, a person cannot transfer a better title to goods than they possess.

Thus, a thief cannot:

(i) acquire legal ownership of stolen property; and

(ii) pass valid title to a buyer, even if the buyer is innocent and pays good money.

The rule operates subject to statutory exceptions which exist to protect bona fide purchasers in specific and limited commercial situations.

Conversion is a strict liability Tort.

So, the state of mind, knowledge or intention of the defendant, e.g. an Art Dealer/Auction House, is irrelevant.

For a detailed discussion of the Law of Constructive Trusts, see my book, the ‘Contentious Trusts Handbook’, published by the Law Society in 2020.

For a rigorous commentary on the Law of Conversion, see the 3rd Edition of ‘The Law of Personal Property’ by Michael Bridge, Louie Gullifer, Kelvin Low and Gerard McMeel (2021)(Sweet & Maxwell).

In my forthcoming book, I will be writing a detailed section about the burden of proof (i.e. about the elements of these claims which must be proved in order to win at Trial), and litigation risks, including potential limitation defences, and in the case of Equitable Remedies such as Constructive Trust – laches.