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  • Author: Francesco Francioni
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: 1. In introducing this EJIL symposium, I cannot help but recall a much debated article published in 1986 in the American Journal of International Law. The author of that article, Stanford professor John Merryman, theorized that there are \'two ways of thinking about cultural property\'. 1 The first, he argued, is the national(istic) way, which conceives of cultural property as part of the nation, with the attendant desire of governments to jealously retain it within state boundaries and to limit its international circulation. The second is the international way, which views cultural property as the heritage of humankind and supports the broadest access and circulation to facilitate exchange and cultural understanding among different peoples of the world. The author left no doubt that the latter view was to be preferred for its alleged capacity to contribute to a cosmopolitan order, in which cultural property can be freely accessed and thus contribute to the intellectual and moral progress of humanity. One may wonder whether this dual perspective accurately reflected the spirit of the law and the policy attitudes of the time when the article was written. Certainly, it cannot adequately explain the present state of the law and, in particular, of international law. Today, there are more than just two ways of thinking about cultural property. Cultural property may be seen as part of national identity, especially in the post-colonial and post-communist context, but it can also be looked at as part of the \'territory\', the physical public space that conditions our world view and which is part of what we normally call \'the environment\' or the \'landscape\'. Cultural property may be seen as moveable artifacts susceptible to economic evaluation, and for this reason subject to exchange in international commerce; but it may also be thought of as objects endowed …
  • Topic: Economics, Government
  • Political Geography: America
  • Author: Dapo Akande, Sangeeta Shah
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article examines the extent to which state officials are subject to prosecution in foreign domestic courts for international crimes. We consider the different types of immunity that international law accords to state officials, the reasons for the conferment of this immunity and whether they apply in cases in which it is alleged that the official has committed an international crime. We argue that personal immunity (immunity ratione personae) continues to apply even where prosecution is sought for international crimes. Also we consider that instead of a single category of personal immunity there are in fact two types of such immunity and that one type extends beyond senior officials such as the Head of State and Head of Government. Most of the article deals with functional immunity (immunity ratione materiae). We take the view that this type of immunity does not apply in the case of domestic prosecution of foreign officials for most international crimes. However, we reject the traditional arguments which have been put forward by scholars and courts in support of this view. Instead we consider the key to understanding when functional immunity is available lies in examining how jurisdiction is conferred on domestic courts.
  • Topic: Government, International Law
  • Political Geography: America