Brazil’s International Cultural Heritage Obligations and the Potential Use of Alternative Dispute Resolution Mechanisms for Illicit Trafficking Disputes

Abstract

The protection of cultural heritage from illicit trade is today a global imperative, and the return of unlawfully removed cultural goods is essential to enforce cultural rights. Indeed, every community has the right to enjoy its cultural heritage and keep alive its collective memory. While referring to these general objectives of contemporary international cultural heritage law and policy, this article seeks to explore those instruments of the Brazilian national legislation that could be effectively applied to combat the illicit trafficking of cultural goods. To this end, it first outlines the relationship between Brazil’s international law obligations and its national legislation in respect of cultural heritage. In other words, it explains how these obligations have been implemented in the national legal system and to what extent they have affected actual regulatory solutions. Next this article identifies and debates, through hermeneutic analysis, those legal provisions and instruments of the Brazilian law which could be used to prevent the illicit transfer of cultural goods. It also recalls the Banco Santos case, which provides a clear example of the shortcomings and pitfalls of the current legal system for the protection of cultural heritage in Brazil. Finally, this article advocates mediation as an alternative method of cultural heritage-related dispute settlement, particularly regarding cases of illicit trade.