Evaluate the facts presented in the file provided.

Write a persuasive legal memorandum for a law uni student by

stating the : questions presented, brief answer, discussion ( crac format ) , conclusion. Write the persuasive legal
memorandum in favor of the thai side. Use/Refer to the rules and information in the file provided. Include many other
sources but cite it with the correct sources or law articles and their numbers. for Thailand side, you will need to
establish that Cultural Repatriation is a part of Customary International Law first. Only then you can apply the
UNESCO and UNIDROIT convention to prove that that artifacts are stolen property. Therefore, you have to do some
additional research to show that there are countries that do return cultural artifacts to their country of origin.
Furthermore, look at the Nicaragua case on how the judge decides what can constitute an opinio juris. Write in this
style :
I. Cultural Repatriation is customary international law due to sufficient state practice and opinio juris :
To prove that cultural repatriation is customary international, two elements must be satisfied A) state practice
and B) opinio juris. :
A. There is consistent and uniform state practice
(RULES) State practice is.
(Application) Here in the present case, there are evidence of many States that practice cultural repatriation.
For example, ..... (name the countries and what did they return to whom)
Mini conclusion (optional)
B. There is opinio juris
(RULES) Opinio juris is ......
(Application) Here in the present case, ....... state what conventions, or treaties or state conduct that that
shows that various states accepted cultural repatriation as a legal obligation.
Mini conclusion (optional)
Therefore, cultural repatriation is customary international because it satisfies both elements.
( and write many other main and sub headings )

Facts for the Thai Government

In 2018, the Thai National Museum prepared for an exhibit on the Ayutthaya Kingdom. They learned of artifacts - a
statue and three vases - belonging to the Ayutthaya Kingdom was on display at the British National Museum. Sir.
Thomas Wolford a British archaeologist, while exploring Thailand in 1898, discovered them. Instead of turning it over
to the Thai govemment, be stole the precious and valuable artifacts on his return back to the United Kingdom, where
he stored it as part of his private collection. After his death in 1922, his children sold the stolen artifacts to the British
National Museum for 675,000 USD and the artifacts have remained there ever since, Since learing of its existence,
the Thai govemment then requested the returns of the artifacts from the Bfitish govemment. However, the British
goverment adamantly refused to return the stolen artifacts.

UNESCO Convention 1970

● Article 1
For the purposes of this Convention, the term "cultural property" means property which, on religious or
secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory,
history, literature, art or science and which belongs to the following categories:
● (e) Antiquities more than one hundred years old, such as inscriptions, coins and engraved seals;

UNESCO Convention 1970

● Article 7
● The States Parties to this Convention undertake:
● (a) To take the necessary measures, consistent with national legislation, to prevent museums and similar
institutions within their territories from acquiring cultural property originating in another State Party which has
been illegally exported after entry into force of this Convention, in the States concerned. Whenever possible,
to inform a State of origin Party to this Convention of an offer of such cultural property illegally removed from
that State after the entry into force of this Convention in both States;
UNESCO Convention 1970
•Article 7(b)(i) to prohibit the import of cultural property stolen from a museum or a religious or secular public
monument or similar institution in another State Party to this Convention after the entry into force of this Convention
for the States concerned, provided that such property is documented as appertaining to the inventory of that
institution;
UNESCO Convention 1970
(b) (ii) at the request of the State Party of origin, to take appropriate steps to recover and return any such cultural
property imported after the entry into force of this Convention in both States concerned, provided, however, that the
requesting State shall pay just compensation to an innocent purchaser or to a person who has valid title to that
property. Requests for recovery and return shall be made through diplomatic offices. The requesting Party shall
furnish, at its expense, the documentation and other evidence necessary to establish its claim for recovery and
return. The Parties shall impose no customs duties or other charges upon cultural property returned pursuant to this
Article. All expenses incident to the return and delivery of the cultural property shall be borne by the requesting Party.
UNIDROIT Convention 1995

● Article 2
● For the purposes of this Convention, cultural objects are those which, on religious or secular grounds, are
of importance for archaeology, prehistory, history, literature, art or science and belong to one of the
categories listed in the Annex to this Convention.
● Article 2(e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals;

UNIDROIT Convention 1995 :

Article 3(1) The possessor of a cultural object which has been stolen shall return it.
Article 3(2) For the purposes of this Convention, a cultural object which has been unlawfully excavated or lawfully
excavated but unlawfully retained shall be considered stolen, when consistent with the law of the State where the
excavation took place.
Article 3(3) Any claim for restitution shall be brought within a period of three years from the time when the claimant
knew the location of the cultural object and the identity of its possessor, and in any case within a period of fifty years
from the time of the theft.
Article 3(4) However, a claim for restitution of a cultural object forming an integral part of an identified monument or
archaeological site, or belonging to a public collection, shall not be subject to time limitations other than a period of
three years from the time when the claimant knew the location of the cultural object and the identity of its possessor.
Article 3(5) not withstanding the provisions of the preceding paragraph, any contracting state may declare that a claim
is subject to a time limitation of 75 years or such longer period as is provided in its law. A claim made in another
contracting state for restitution of a cultural object displaced from a monument, archaeological site or public collection
in a contracting state making such a declaration shall also be subject to that time limitation.
UNIDROIT Convention 1995 :
Article (7) For the purposes of this Convention, a "public collection" consists of a group of inventoried or otherwise
identified cultural objects owned by:
Article 7 (a) a Contracting State
Article 7(b) a regional or local authority of a Contracting State;
Article 7(c) a religious institution in a Contracting State; or
Article 7(d) an institution that is established for an essentially cultural, educational or scientific purpose in a
Contracting State and is recognised in that State as serving the public interest.
UNIDROIT Convention 1995 :
Article 6
Article 6(1) The possessor of a cultural object who acquired the object after it was illegally exported shall be entitled,
at the time of its return, to payment by the requesting State of fair and reasonable compensation, provided that the
possessor neither knew nor ought reasonably to have known at the time of acquisition that the object had been
illegally exported.
Article 6(2) In determining whether the possessor knew or ought reasonably to have known that the cultural object
had been illegally exported, regard shall be had to the circumstances of the acquisition, including the absence of an
export certificate required under the law of the requesting State.
Customary International Law
Sources of International Law
• Article 38
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it,
shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting
states;
b. international custom, as evidence of a general practice accepted as law;
C. the general principles of law recognized by civilized nations;
d. teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of
rules of law.
Customary International Law
North Sea Continental Shelf Cases (Federal Republic of Germany v. The Netherlands; Federal Republic of
Germany/Denmark). ICJ Rep. 1969, :
-paragraph 73. With respect to the other elements usually regarded as necessary before a conventional rule can be
considered to have become a general rule of international law, it might be that, even without the passage of any
considerable period of time, a very widespread and representative participation in the convention might suffice of
itself, provided it included that of States whose interests were specially affected. In the present case however, the
Court notes that, even if allowance is made for the existence of a number of States to whom participation in the
Geneva Convention is not open, or which, by reason for instance of being land-locked States, would have no interest
in becoming parties to it, the number of ratifications and accessions so far secured is, though respectable, hardly
sufficient. That non-ratification may sometimes be due to factors other than active disapproval of the convention
concerned can hardly constitute a basis on which positive acceptance of its principles can be implied: the reasons are
speculative, but the facts remain.
-paragraph 74. As regards the time element, the Court notes that it is over ten years. since the Convention was
signed, but that it is even now less than five since it came into force in June 1964, and that when the present
proceedings were brought it was less than three years, while less than one had elapsed at the time when the
respective negotiations between the Federal Republic and the other two Parties for a complete delimitation broke
down on the question of the application of the equidistance principle, although the passage of only a short period of
time is not necessarily or of itself, a bar to the formation of a new rule of customary international law, on the basis of
what was originally a purely conventional rule and indispensable requirement would be that within the period in
question, short though it might be, state practice, including that of states those states whose interests are specifically
affected, should have been both extensive and virtually uniform in the sense of the provision invoked, and should,
moreover, have occurred in such a way asked to show a general recognition that a rule of law or legal obligation is
involved.
-paragraph 77. The essential point in this connection-and it seems necessary to stress it-is that even if these
instances of action by non-parties to the Convention were much more numerous than they in fact are, they would not,
even in the aggregate, suffice in themselves to constitute the opinio juris; -for, in order to achieve this result, two
conditions must be fulfilled. Not only must the acts concerned amount to a settled practice, but they must also be
such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit
in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are
conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself
enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost
invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense
of legal duty.
Nicaragua v. USA :
188. The Court thus finds that both Parties take the view that the principles as to the use of force incorporated in the
United Nations Charter correspond, in essentials, to those found in customary international law. The Parties thus both
take the view that the fundamental principle in this area is expressed in the terms employed in Article 2, paragraph 4,
of the United Nations Charter. They therefore accept a treaty-law obligation to refrain in their international relations
from the threat or use of force against the territorial integrity or political independence of any State, or in any other
manner inconsistent with the purposes of the United Nations. The Court has however to be satisfied that there exists
in customary international law an opinio Juris as to the binding character of such abstention.
This opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of the Parties and the
attitude of States towards certain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled
"Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations"
Clarifications on inconsistent State practice
Nicaragua case

1. For a customary rule to come into force, it is not necessary to have complete consistency in State practice
in respect of the rule.
2. Inconsistent State practice does not affect the formation or existence of a customary principle so long as
the inconsistency is justified by the State as a breach of the rule.
3. This attempt at justifying a violation would only make the rule's customary law nature stronger.

Opinio Juris
..evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it"

● "The States concerned must therefore feel that they are conforming to what amounts to a legal obligation."
● Look at attitudes of the States - parties of conventions, UNGA and
UNSC resolutions, decisions of courts as well as national legislations.

Possible Cases

● Jeddi v. Sotheby (UK)

● The Venus of Cyrene Case
● The Met Will Return a Pair of Statues to Cambodia