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The Draft Convention on Immunity from Suit and Seizure for Cultural Objects Temporarily Abroad for Cultural, Educational or Scientific Purpose

Published online by Cambridge University Press:  22 January 2015

Nout van Woudenberg and
James A. R. Nafziger
Nout van Woudenberg
Affiliation:
Kingdom Affairs Adviser, Ministry of Foreign Affairs of the Kingdom of the Netherlands, Ph.D. in International Art Law. The co-author prepared his portion of this commentary in his personal capacity. E-mail: nout-van.woudenberg@minbuza.nl
James A. R. Nafziger
Affiliation:
Thomas B. Stoel Professor of Law and Director of International Programs, Willamette University College of Law (USA); Chair, Cultural Heritage Law Committee, International Law Association. E-mail: jnafzige@willamette.edu
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Research Article
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International Journal of Cultural Property , Volume 21 , Issue 4 , November 2014, pp. 481 - 498
Copyright
Copyright © International Cultural Property Society 2015 

I. Introduction

The international exchange and circulation of cultural objects as well as public accessibility to them are fundamental tenets of cultural heritage law. The sharing of cultural values by means of such mobility promotes global consciousness and helps form the fabric of a global community. Art and artifacts can be superb ambassadors. In particular, international lending and borrowing of objects for public display and scientific research are essential. Loans of objects have become particularly significant as tighter budgets and stricter ethical requirements have restricted purchases of objects by museums and other institutions.

A serious inhibition on such exchange and circulation is the vulnerability of lent objects to claims in courts or before other authorities of the receiving country to which the objects have been temporarily relocated for cultural, educational, or scientific purposes. These claims may result in seizure of objects for return or restitution to either local or foreign claimants. Usually, a seizure directly involves an issue of ownership, but sometimes it does not, as, for example, when the owner of a cultural object on foreign loan owes an unsatisfied debt and the claimant seeks satisfaction of a court judgment or arbitration award against the owner up to the value of the object.Footnote 1 Often, a seizure serves a commendable purpose such as to interdict an object plundered during armed conflict, otherwise looted, or illegally exported from its country of origin. The facilitation of Holocaust-related claims is a prime example of how authoritative intervention can vindicate fundamental human rights, even when an object has been loaned for the best of cultural, educational or scientific purposes.

Resulting conflicts between the vindication of property rights and the promotion of cultural exchange and circulation are often unavoidable. Litigation of such conflicts and a reliance on a foreign courtroom in the receiving State in order to rectify past injustices elsewhere, however, can be both costly and otherwise troublesome.Footnote 2 Although litigation can lead to amicable settlements, they are by no means certain. Given the risks of litigation, prospective lending sources may be reluctant or unwilling to share their objects for temporary display or research abroad.

In response to this kind of problem, several legal systems immunize cultural objects borrowed from abroad from authoritative seizure so long as the governing authority has certified such immunity prior to the temporary import of such objects. In 1965, the United States became the first country to do so. Federal legislation,Footnote 3 reinforced by limited state legislation, basically prohibits seizures that would interfere with the accomplishment of any agreement for the temporary loan of a cultural object between the owner or custodian of loaned objects and the United States or a cultural or educational institution within United States jurisdiction. The legislation requires that before the importation of the object, the President or his designee must determine that it is of cultural significance and that its temporary display is in the national interest. Also, official notice to that effect must be published. Several other countries followed with similar legislation and legislative initiativesFootnote 4 at both national and subnational levels.Footnote 5

It is broadly, although not fully recognized that cultural State property is immune from seizure under customary international law, but from a global perspective issues of immunity remain troublesome.Footnote 6 In 2004 a United Nations convention on jurisdictional immunities of States and their propertyFootnote 7 briefly addressed, among other matters, cultural objects on loan. It is neither very specific nor yet in force, however. The need is apparent, therefore, to provide a more detailed global scheme to govern immunities of cultural objects from seizure.

Another problem involves the use of cultural objects as a basis for the jurisdiction of a court in a receiving State.Footnote 8 Typically, the underlying claim involves disputed ownership of a cultural object related to which a claimant deems the courts of a receiving State to be preferable to those of the country of an object’s origin for reasons of sovereign immunity or local bias. Such procedural use of a cultural object as a basis for judicial process is not normally covered by pre-importation clearance under immunity-from-seizure legislation. Instead, it becomes a matter of immunity from suit. The U.S. Congress has considered but not approved of a bill that would provide for sovereign immunity from suit except in the instance of objects that were seized by the Nazis or forcibly sold to them.Footnote 9

II. The International Law Association’s Drafting Project

In October 2011, at an intersessional meeting in Kohunlich, Mexico, the Cultural Heritage Law Committee of the International Law Association (ILA) decided to move ahead with a proposal during the Committee’s meeting in 2010 to consider immunities of cultural objects on loan in foreign countries from both seizures and suits while abroad. The focus was to be on loaned objects from foreign sources, as a topic of international law. On the suggestion of Committee member Sabine Gimbrère, the Committee asked Th.M. de Boer and Nout van Woudenberg to prepare a draft report. At the Seventy-Fifth Conference of the ILA in 2012, the resulting report by these co-authors was the principal topic on the committee’s agenda. After substantial discussion of the report, the Committee turned to a consideration of work product and decided to draft an international convention.Footnote 10 Dr. van Woudenberg then accepted the chair’s invitation to serve as a special rapporteur for the project.

After further review and commentary on van Woudenberg’s initial draft and Explanatory Notes for the Draft Convention, the Committee convened in June 2013 at Herlufsholm (Naestved) Denmark to discuss a revised Draft Convention and Explanatory Notes in detail. The Committee agreed on several revisions. Subsequent drafts by van Woudenberg took account of additional commentary by Committee membersFootnote 11 and editing by Professor Nafziger and Ms. Gimbrère. In 2014 the committee discussed and amended the Draft Convention and its Explanatory Notes during the ILA’s Seventy-Sixth Conference in Washington. The Committee then approved of a final version of those documents, which was then adopted by the ILA at a plenary session during the conference.

In sum, the Draft Convention (see the Annex) responds to an important problem involving international loans of cultural objects for scientific, cultural, or educational purposes, especially for temporary exhibits. The fundamental purpose of the instrument, which is intended for eventual adoption by an international or regional organization and ratification of it by states, is to protect the integrity of international loans and thereby encourage their role in promoting cross-cultural understanding.

III. A Summary of the Draft Convention

As stated above, the issue of State immunity for cultural objects remains a difficult problem. The 2004 UN Convention on jurisdictional immunities of States and their property, which addresses this issue, has not yet entered into force, and a rule of customary international law is neither entirely undisputed nor unlimited. Moreover, the 2004 UN Convention and any possible customary international law rule only cover cultural State property. Privately owned cultural objects, however, can also be very important for international exhibitions, research, and so on. Moreover, the ownership of more and more State-owned cultural objects is being transferred to private foundations. A future global convention on immunity from suit and seizure for all kinds of cultural objects on loan, regardless of whether they are State-owned or privately owned would seem to be appropriate.

The Draft Convention, as approved by the ILA in April 2014, provides for immunity from suit and seizure of (all) cultural objects which are temporarily present in a receiving State for cultural, educational or scientific purposes, unless the cultural object is placed or intended to be placed on sale, or the cultural object is owned, possessed or otherwise controlled by the receiving State or a physical or legal person residing in the receiving State. The Draft Convention expresses the conviction that immunity from seizure can prevent cultural objects temporarily abroad for cultural, educational, or scientific purposes from being subject to trade, ownership or other disputes, and that immunity from seizure facilitates the mobility of cultural objects and overcomes the reluctance of lenders to send their cultural objects into a foreign jurisdictions where they might be subject to some form of judicial seizures. Therefore, Article 3 of the convention, one of the core articles, states that objects which are temporarily present in a receiving State for cultural, educational or scientific purposes shall enjoy immunity from seizure in that State. No order that prevents or may prevent the return of the cultural object to the sending State shall be issued in the receiving State.

Article 4 specifically addresses the issue of immunity from suit; authoritative seizure of objects is not the issue. Subparagraph 1 establishes that “the temporary presence of the cultural objects in the receiving State for cultural, educational or scientific purposes shall not form the basis for any legal process in the receiving State.” States Parties to the Convention would agree not to recognize or give effect to any judgments or awards rendered in the receiving State in violation of Article 4.1. A State Party may declare, however, that it does not consider itself bound by these provisions. Moreover, Article 4 is subject to Article 5, which provides that “[i]mmunity from seizure or suit does not apply in cases where the receiving State is bound by conflicting obligations under international or regional law.”

Malewicz v. City of Amsterdam Footnote 12 illustrates the problem to which Article 4 is intended to respond. There, against a complicated background of transactions over a lengthy period of time, 14 pieces from a much larger collection of art by Kazimir Malewicz in Amsterdam’s city-owned Stedelijk Museum were loaned for temporary exhibition in New York. The U.S. Department of State, under the federal immunity-from-seizure law, had determined that the criteria of national interest and cultural significance would be met so as to protect the art from seizure while on loan in the country. However, several heirs of Malewicz filed a federal court action, with jurisdiction based on the Foreign Sovereign Immunity Act (FSIA), claiming the objects without actual seizure of them during their presence on loan in the United States. The action was filed, with notice to the City of Amsterdam, just two days before the objects were returned to the Stedelijk Museum. In the words of the Statement of Interest filed by the United States, which supported the defendant City of Amsterdam, “[p]laintiffs are therefore using the window of opportunity afforded by the Malewicz exhibition[s] as the jurisdictional hook for their claims.”Footnote 13

After intricately examining the applicability of the FSIA to the case, the court held that it had jurisdiction to hear the claim under the commercial activities exception to the FSIA. The court ruled that the City of Amsterdam did have sufficiently substantial contact in the United States in the form of financial payments for the defendant city’s loan of the works and the presence in the United States of the city’s employees to oversee the safety of the paintings. The effect of the decision was to encourage a settlement of the dispute that split the ownership of the entire collection of Malewicz paintings (79 paintings to be retained by the Stedelijk Museum and five to be transferred to the plaintiff family).

The Malewicz decision generated substantial anxiety among some museums concerning the loan of works of art to U.S. institutions, as well as unfortunate misunderstanding about the reach of the federal government’s grant of immunity from seizure of loaned objects. The core value of encouraging international mobility of cultural objects was thereby seen to be threatened. The Draft Convention responds to such anxieties by providing immunity from Malewicz-type actions not involving actual seizure of objects. It should be noted, however, that States Parties can declare that they are not bound by Articles 4.1 and 4.2 of the Draft Convention.

Although immunity can be considered as a starting point, it is considered important that the granting of immunity under the Draft Convention should not be a means of facilitating the cross-border movement of cultural objects that have been illegally exported, stolen, looted or acquired illicitly. For that reason, Article 5 of the Draft Convention States that immunity from seizure or suit does not apply in cases where the receiving State is bound by conflicting obligations under international or regional law, for example, EU law. No explicit reference to court orders has been made because practices of incorporating or transposing international law into the domestic order vary widely among States. In several States, however, a court order may be required in order to give effect to an obligation under international or regional law.

Although immunity in the context of loans is a temporary measure, it may also suspend a claimant’s ability to be granted a particular form of relief. In order to provide some kind of balance, it is considered necessary that the receiving State and the sending State, jointly or separately, exercise due diligence in order to determine or confirm the provenance of a cultural object subject to a prospective loan. Consequently, no transfers should take place between a sending State and a receiving State where the provenance of an object cannot be established. The principle of due diligence has been drawn particularly from UK legislation,Footnote 14 as well as the 2004 Code of Ethics of the International Council of Museums (ICOM).Footnote 15

The Draft Convention should be considered as a “minimum standard.” According to the Draft Convention, States Parties are entitled to take further measures in accordance with their municipal law to secure the effective implementation of the Draft Convention within their respective jurisdictions, provided such measures are consistent with the provisions of the convention. Such measures could include, for example, a requirement on a borrowing institution to ensure that public notice is given of the details and ownership of any cultural object prior to its transfer to the receiving State. Moreover, any State Party may enter into agreements with one or more other States Parties, with a view to improving the application of the convention in their mutual relations.

The adoption by the ILA of this instrument finalizes a three-year process of work by the ILA’s Cultural Heritage Law Committee. At the same time, however, it should be considered as a new starting point. That is why ILA Resolution 3/2014 requests the Secretary-General of the ILA to forward a copy of the Final Report, including the Draft Convention, to the United Nations Secretary-General, the Secretary-General of UNESCO, the Hague Conference of Private International Law, the Comité Juridique of the European Union (COJUR/EU), the Committee of Legal Advisors on Public International Law of the Council of Europe (CAHDI/Council of Europe) and other appropriate international and regional organizations, such as, for instance, ICOM. If one or another of these organizations takes up the convention and initiates intergovernmental negotiations based on this convention, the outlook is promising for global endorsement of immunity from suit and seizure for cultural objects temporarily abroad for cultural, educational or scientific purposes.

ANNEX

CONVENTION ON IMMUNITY FROM SUIT AND SEIZURE FOR CULTURAL OBJECTS TEMPORARILY ABROAD FOR CULTURAL, EDUCATIONAL OR SCIENTIFIC PURPOSES

The States Parties to this Convention,

  1. 1) Recognizing that the exchange and circulation of cultural objects among nations for scientific, cultural or educational purposes increases the knowledge of different civilizations and improves the mutual understanding of peoples, inspiring respect and appreciation of cultural diversity.

  2. 2) Considering that cultural exchange contributes to the enrichment of the cultures involved, with due appreciation of their distinctive characters;

  3. 3) Convinced that mobility of cultural objects contributes to economic growth and tourism, is an important educational tool, and is essential to exhibition and museum activities;

  4. 4) Referring to Article 15 of the International Covenant on Economic, Social and Cultural Rights, according to which the States Parties to the Covenant recognize the right of everyone (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which (s)he is the author;

  5. 5) Also referring to Article IX of the 1966 UNESCO Declaration of Principles of International Cultural Co-operation, stating that cultural co-operation contributes to the establishment of stable, long-term relations between peoples, which should be subjected as little as possible to the strains which may arise in international life;

  6. 6) Therefore convinced that cultural objects, in light of their special importance, should be treated differently under international law from other objects.

  7. 7) Resolved to promote the sharing of cultural values through the mobility of cultural objects, including, in particular, international lending and borrowing of cultural objects for public display, in particular for exhibitions;

  8. 8) Further considering that the protection of cultural objects temporarily abroad can be effective only if organized both nationally and internationally among States, working in close cooperation;

  9. 9) Convinced that immunity from seizure can prevent cultural objects temporarily abroad for cultural, educational or scientific purposes from being subject to trade, ownership or other disputes, and that immunity from seizure facilitates the mobility of cultural objects and overcomes the reluctance of lenders to send their cultural objects into a foreign jurisdiction where they might be subject to some form of judicial seizures.

  10. 10) Emphasizing that immunity from seizure should only suspend a claimant’s ability to be granted a particular form of relief for a strictly limited period of time;

  11. 11) Convinced that the granting of immunity under this Convention should not facilitate the cross-border movement of cultural property that may have been stolen, looted, illegally exported, or otherwise acquired in an illicit manner, with reference to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property; accordingly, the parties to any temporary transfer of a cultural object should undertake proper due diligence into the provenance of the object before any transfer takes place.

  12. 12) Seeking to avoid the risk that the temporary presence abroad for cultural, educational or scientific purposes of cultural objects could be used as a basis for establishing jurisdiction for claims to the object.

Have agreed as follows:

Article 1: Scope

Without prejudice to Article 5, this Convention provides for immunity from suit and seizure of cultural objects which are temporarily present in a receiving State for cultural, educational or scientific purposes, unless:

  1. a) the cultural object is placed or intended to be placed on sale; or

  2. b) the cultural object is owned, possessed or otherwise controlled by the receiving State or a physical or legal person resident in the receiving State.

Article 2: Definitions

For the purposes of this Convention,

  1. 1. The term “cultural object” shall mean an object which, on religious or secular grounds, is specifically designated by a State as being of importance for archaeology, prehistory, history, literature, art or science and which belongs to the following categories:

  2. (a) rare collections and specimens of fauna, flora, minerals and anatomy, and objects of palaeontological interest;

  3. (b) property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artist and to events of national importance;

  4. (c) products of archaeological excavations (including regular and clandestine) or of archaeological discoveries ;

  5. (d) elements of artistic or historical monuments or archaeological sites which have been dismembered;

  6. (e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals;

  7. (f) objects of ethnological interest;

  8. (g) property of artistic interest, such as:

    1. (i) pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand);

    2. (ii) original works of statuary art and sculpture in any material;

    3. (iii) original engravings, prints and lithographs ;

    4. (iv) original artistic assemblages and montages in any material;

  9. (h) rare manuscripts and incunabula, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections ;

  10. (i) postage, revenue and similar stamps, singly or in collections;

  11. (j) archives, including sound, photographic and cinematographic archives;

  12. (k) articles of furniture more than one hundred years old and old musical instruments.

  13. 2. The term “seizure” shall mean any legal process which temporarily or permanently prevents the return of the cultural object to the sending State.

  14. 3. The term “immunity from seizure” shall mean the legal guarantee that cultural objects which are temporarily present in the receiving State for cultural, educational or scientific purposes will be protected against any form of seizure while present in that State.

  15. 4. The terms “temporary” and “temporarily” shall mean a limited period of time, not exceeding five years, starting from the date the receiving State receives the cultural object concerned.

  16. 5. The term “sending State” shall mean the State Party where the cultural object concerned is permanently or usually located.

  17. 6. The term “receiving State” shall mean the State Party in which the cultural object concerned is temporarily present for cultural, educational or scientific purposes.

Article 3: Immunity from seizure

Without prejudice to Article 5, cultural objects which are temporarily present in a receiving State for cultural, educational or scientific purposes shall enjoy immunity from seizure in that State. No order that prevents or may prevent the return of the cultural object to the sending State shall be issued in the receiving State.

Article 4: Immunity from suit

  1. 1. Without prejudice to Article 5, the temporary presence of the cultural objects in the receiving State for cultural, educational or scientific purposes shall not form the basis for any legal process in the receiving State.

  2. 2. A judgment or award rendered by a court or tribunal in the receiving State in violation of paragraph 1 shall not be recognized or given effect in any State Party.

  3. 3. A State Party may, at the time of signature, ratification, acceptance or approval of, or accession to, the present Convention, declare that it does not consider itself bound by paragraph 1 or 2 of this Article.

  4. 4. Any State Party that has made a declaration in accordance with paragraph 3 may at any time withdraw that declaration by notification to the depositary.

Article 5: Exception for immunity from seizure or suit

Immunity from seizure or suit does not apply in cases where the receiving State is bound by conflicting obligations under international or regional law.

Article 6 : Settlement of disputes

  1. 1. States Parties shall endeavor to settle disputes between them concerning the interpretation nor application of the present Convention through negotiation.

  2. 2. Any dispute between two or more States Parties concerning the interpretation or application of the present Convention which cannot be settled through negotiation within six months shall, at the request of any of the States Parties concerned, be submitted to arbitration. If, six months after the date of the request for arbitration, the States Parties concerned are unable to agree on the organization of the arbitration, any of the States Parties concerned may refer the dispute to the International Court of Justice by request in accordance with the Statute of the Court.

  3. 3. Each State Party may, at the time of signature, ratification, acceptance or approval of, or accession to, the present Convention, declare that it does not consider itself bound by paragraph 2. The other States Parties shall not be bound by paragraph 2 with respect to any State Party which has made such a declaration.

  4. 4. Any State Party which has made a declaration in accordance with paragraph 3 may at any time withdraw that declaration by notification to the depositary.

Article 7: Due diligence

Prior to the temporary presence of cultural objects in the receiving State for cultural, educational or scientific purposes, the receiving State and the sending State shall, jointly or separately, ensure that all due diligence is carried out to determine or confirm the provenance of the object, at least in compliance with the standards required by the International Council of Museums (ICOM).

Article 8: Further measures at national level

States Parties shall be entitled to take further measures in accordance with their municipal law to secure the effective implementation of the Convention within their respective jurisdictions, provided such measures are consistent with the provisions of this Convention.

Article 9: Transitional provision

This Convention shall apply only to cultural objects which are temporarily present for cultural, educational or scientific purposes in the receiving State after the Convention has entered into force in that State.

Article 10: Signature, ratification and accession

  1. 1. This Convention is open for signature until [date].

  2. 2. This Convention is subject to ratification, acceptance or approval by States which have signed it.

  3. 3. This Convention is open for accession by all States which are not signatory States as from the date it is open for signature.

  4. 4. Ratification acceptance, approval or accession is subject to the deposit of a formal instrument to that effect with the depositary.

  5. 5. For the purposes of this Convention [….] will serve as the depositary.

Article 11: Entry into force

  1. 1. This Convention shall enter into force on the first day of the third month following the date of deposit of the fifth instrument of ratification, acceptance, approval or accession.

  2. 2. For each State which ratifies, accepts, approves or accedes to this Convention after the deposit of the fifth instrument of ratification, acceptance, approval or accession, this Convention shall enter into force in respect of that State on the first day of the third month following the date of deposit of its instrument of ratification, acceptance, approval or accession.

Article 12: Relations between States Parties

Any State Party may enter into agreements with one or more other States Parties, with a view to improving the application of this Convention in their mutual relations. The States which have concluded such an agreement shall transmit a copy to the depositary.

Article 13: Reservations

A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless the reservation is incompatible with the object and purpose of this Convention.

Article 14: Denunciation

  1. 1. This Convention may be denounced by any State Party, at any time after the date on which it enters into force for that State, by the deposit of an instrument to that effect with the depositary.

  2. 2. A denunciation shall take effect on the first day of the sixth month following the deposit of the instrument of denunciation with the depositary.

  3. 3. Notwithstanding such a denunciation, this Convention shall continue to apply to cultural objects which were already present in the receiving State before the denunciation took effect.

EXPLANATORY NOTES

Preamble

Paragraph 1 is based upon the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 2nd preambular paragraph, with some modifications.

See also the Principles for Cooperation in the Mutual Protection and Transfer of Cultural Material (International Law Association, Report of the Seventy-Second Conference, 338 et seq. (2006)). Like this Convention, these Principles for Cooperation were drafted by the ILA’s Committee on Cultural Heritage Law. They provide a substantive framework for helping to avoid, and resolve disputes arising out of requests for the transfer of cultural materials usually involving its return or restitution to countries of origin or indigenous groups. The Principles for Cooperation begin with a preamble, followed by definitions of “requesting party” or “requesting parties” for the transfer of cultural materials, and of a “recipient” or “recipients” to requests for such transfers. The nine Principles take note of loans as an alternative to more or less permanent transfers of cultural materials.

Paragraph 2: The 1976 Recommendation concerning the International Exchange of Cultural Property, 2nd preambular paragraph, has served as a source of inspiration, but it has been shortened and simplified.

Paragraph 4 refers to Article 15 of the International Covenant on Economic, Social and Cultural Rights (adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966; entry into force 3 January 1976).

Paragraph 5: Reference is made to the 1966 UNESCO Declaration of Principles of International Cultural Co-operation, adopted on 4 November 1966 by the UNESCO General Conference. In general, this Declaration of Principles pertains to the topic of the unimpeded mobility of cultural objects.

Paragraph 6 refers to the idea of the so-called “cultural exception,” which is sometimes expressed, under private international law, so as to characterize a cultural object as res extra commercium.

Paragraph 8 is based upon the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 8th preambular paragraph.

Paragraph 9: See also Nout van Woudenberg, State Immunity and Cultural Objects on Loan, Martinus Nijhoff Publishers, Leiden/Boston 2012, Chapter 1, Sections 1.2 and 1.3.

Paragraph 10 stems from the Consultation Paper on anti-seizure legislation, United Kingdom Department for Culture, Media and Sport, 8 March 2006, para. 1.16. “Relief” has been defined as a “remedy sought by a claimant in a legal action,” Dictionary of Law, Third Edition, Middlesex 2000.

Paragraph 11: Several international agreements exist which aim at promoting the mobility of cultural objects. However, most of these agreements have a double function: not only do they promote international cultural exchange and collection mobility, but they also try to stop the illegal trafficking in cultural objects and aim at the safe return of cultural objects illegally removed. In other words: “[...] on the one hand a number of international instruments such as conventions [...] are clearly aimed at granting the protection of cultural heritage by ensuring the restitution or the return of cultural objects to their “countries of origin” and/or to their legitimate owner. On the other hand. the same international instruments, particularly but not exclusively after the adoption of the UNESCO Convention on Cultural Diversity, are aimed at promoting the mobility of artworks and of collections.” Manlio Frigo, “Protection of Cultural Property on Loan; Anti-Seizure and State Immunity Laws: An Italian Perspective,” Art Antiquity and Law, April 2009, Vol. XIV, Issue 1, pp. 49-62, at pp. 57-58.

Accordingly it is considered important that the granting of immunity under the Convention should not be a means of facilitating the cross-border movement of cultural objects which have been illegally exported, stolen, looted or acquired illicitly, and such immunity should be balanced by an obligation on the lending and borrowing States to ensure that the parties to any temporary transfer of a cultural object undertake proper due diligence into the provenance of an object before any transfer takes place. Paragraph 12: See Malewicz v. City of Amsterdam, 362 F.Supp2d 298 (D.D.C. 2005); 517 F.Supp.2d 322 (D.D.C. 2007).

Article 1: Scope

Beginning the text with a provision on the scope of the Convention underlines the international character of the situations covered by the Convention and solves the problem of otherwise defining the transnational character of the underlying agreement.

Article 21, paragraph 1, sub d, of the 2004 UN Convention on Jurisdictional Immunities of States and Their Property inspired Article 1 of this Convention.

The idea of cultural property owned, possessed or controlled by a State stems from the 2004 UN Convention. Although that Convention does not define State property, it can be understood from the discussions and earlier drafts of this Convention that cultural State property should be understood in that manner. See also: Nout van Woudenberg, State Immunity and Cultural Objects on Loan, Martinus Nijhoff Publishers, Leiden/Boston 2012.

Article 2: Definitions

Paragraph 1 has been taken from the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Article 1. However, here the term “cultural object” is used instead of “cultural property.”

Paragraph 2 is based upon the Action Plan for the EU Promotion of Museum Collection Mobility and Loan Standards, Helsinki 2006, but adapted to the present Convention.

Paragraph 3 defines the term immunity from seizure principally for the operational purposes of Article 3.

Paragraph 4: “Temporary” is usually used to describe an event that lasts a limited amount of time, but its length varies according to the context. A temporary exhibition normally does not exceed the time limit of one year. However, if a cultural object is located in a receiving State for purpose of study or restoration, the temporary presence may extend to several years.

[NB: as the European Union Long-Term Loans and Loan Fees work group stated in December 2007: “A long-term loan is of several years duration, generally three to five years, but can be considerably longer (for example, in the case of oversized works).” This has been repeated in the Report of the Long-term Loans and Collection Research Working Group 2008–2010 of the European Commission. See: http://www.kansallisgalleria.fi/wp-content/uploads/2014/04/15779_Long_term_loans_best_practices.pdf.]

Paragraph 5: the term “sending State” solely refers to a location, and has no reference to particular ownership. The cultural object send by a sending State can thus be State owned, but also privately owned.

Paragraph 6: the key terms “cultural object” and “temporarily present” are defined in paragraphs 1 and 4 of Article 2 respectively.

Article 3: Immunity from seizure

This Article forms one of the two bases of the Convention, the other being Article 4 (Immunity from suit”).

Where reference is made to “immunity” in this Convention, the term should not be identified with sovereign immunity under public international law.

Article 4: Immunity from suit

With regard to paragraph 1: an article regarding immunity from suit is necessary, as the jurisdiction of civil courts can be based on the mere presence of property in the forum State. The existence or not of a loan agreement that has been or should be performed in the forum State is then not fully determinative of the return of a cultural object to a sending State.

With regard to paragraph 2: a sanction for assuming jurisdiction contrary to paragraph 1 would seem to be called for. That sanction should be non-recognition or denial of effect by the States Parties (including the sending State) and therefore a refusal to enforce such a judgment or award.

With regard to paragraph 3: this provision can be considered as an “opt out” provision. It is not considered a reservation, as Article 12 specifically governs reservations.

Article 5: Exception for immunity from seizure or suit

The United Kingdom Tribunals, Courts and Enforcement Act 2007, Article 135(1) has inspired this Article. Article 135(1) of the UK Act reads: “While an object is protected under this section it may not be seized or forfeited under any enactment or rule of law, unless—

  1. (a) it is seized or forfeited under or by virtue of an order made by a court in the United Kingdom, and

  2. (b) the court is required to make the order under, or under provision giving effect to, a Community obligation or any international treaty.”

No explicit reference to court orders has been made because practices of incorporating or transposing international law into the domestic order vary widely. However, in several States a court order may be required in order to give effect to an obligation under international or regional law.

Obligations under international or regional law might include the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, and Council Directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State.

Article 6 : Settlement of disputes

This Article is based upon the 2004 UN Convention on Jurisdictional Immunities of States and Their Property, Article 27, and is relatively common under instruments of public international law. However, this provision only covers disputes between States. It has no effect in private disputes.

Article 7: Due diligence

Although immunity from seizure is a temporary measure, it may also suspend a claimant’s ability to be granted a particular form of relief. In order to provide some kind of balance, it is considered necessary that the receiving State and the sending State, jointly or separately, exercise due diligence in order to determine or confirm the provenance of a cultural object subject to a prospective loan. Consequently, no transfers should take place between a sending State and a receiving State where the provenance of an object cannot be established.

Reference is made to the ICOM standards. The 2004 ICOM Code of Ethics sets minimum standards of professional practice and performance for museums and its staff. Article 2.2 states that “no object or specimen should be acquired by […] loan […] unless the acquiring museum is satisfied that a valid title is held.” Under Article 2.3 “every effort must be made before acquisition to ensure that any object or specimen offered for […] loan […] has not been illegally obtained in or exported from, its country of origin or any intermediate country in which it might have been owned legally. Due diligence in this regard should establish the full history of the item from discovery or production.” Article 3.6 of the Code requires museums to verify the terms of export. The Code of Ethics states that museums should refrain from exhibiting objects which have been illegally exported or are of doubtful provenance.

Article 8: Further measures at national level

Article 8 permits States Parties to adopt further measures under domestic law to secure the effective implementation of the Convention. However, any such measures must be consistent with the Convention. Such measures could include, for example, a requirement on a borrowing institution to ensure that public notice is given of the details and ownership of any cultural object prior to its transfer to the receiving State. The purpose of such a requirement would be to give notice of the whereabouts of the object to any possible claimant and to enable a borrowing institution to assess the seriousness of any claim and to decide whether to go ahead with a loan. A number of states that have anti-seizure legislation so require, and Article 8 would permit them to continue doing so.

Article 9: Transitional provision

This Article confirms that the Convention has no retroactive effect.

Article 10: Signature, ratification and accession

Paragraphs 1-4 are based upon the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, Article 11.

Several Conventions provide for accession by regional economic integration organizations, other regional integration organizations or international (global) organizations. The ILA has decided to leave to future intergovernmental negotiations the question whether to enable such organizations to become Parties to the Convention.

Article 11: Entry into force

This Article is based upon the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, Article 12. The time period has been shortened, however, from the 6th month to the 3rd month.

Article 12: Relations between States Parties

This Article is based upon the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, Article 13, 2nd paragraph.

Article 13: Reservations

This Article reflects Article 19 of the 1969 Vienna Convention on the Law of Treaties. Reservations are allowed unless they are contrary to the object and purpose of a treaty.

Article 14: Denunciation

Paragraphs 1 and 2 are based upon the 1995 UNIDROIT Convention, Article 19, but in view of the nature of loans require six months’ notice before a denunciation is effective.

The essence of paragraph 3 requires the continued applicability of the Convention, even after denunciation, to situations in which cultural objects are temporarily abroad and have not yet been returned to the country of origin at the time the denunciation takes effect.

Footnotes

1 See, e.g., Diag Human v. Czech Republic, Case No. 72E, 1855/11 z-20 (21 June 2011).

2 For example, the saga of Egon Schiele’s “Portrait of Wally,” which was on loan in the United States from the Leopold Museum in Vienna, is a well-known example of the problem. See United States v. Portrait of Wally, 663 F. Supp. 2d 232 (S.D.N.Y. 2009). For a summary of this case, see Kaye, “Recovery of Art Looted During the Holocaust.”

3 Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition, Pub. L. No 89-259 (S. 2273), 79 Stat. 985 (1965), 22 U.S.C. 2459 (2012 ed.).

4 Van Woudenberg, State Immunity and Cultural Objects on Loan. For a discussion of the issues of such initiatives with a focus on the experience in Italy, see Frigo, “Protection of Cultural Property on Loan,” 49.

5 Examples of subnational laws include those of the states of New York, Rhode Island, Tennessee, and Texas in the United States and Ontario in Canada.

6 See van Woudenberg, State Immunity and Cultural Objects on Loan, throughout the text.

7 U.N. Doc. A/RES/59/38 (2 Dec. 2004) [hereinafter 2004 UN Convention].

8 A classic case involved the loan of several pieces from the Stedelijk Museum in Amsterdam for a traveling exhibition in the United States. Malewicz v. City of Amsterdam, 362 F. Supp. 2d. 298 (D.D.C. 2005); 517 F. Supp. 2d 322 (D.D.C. 2007). See text at notes 12–13, infra.

9 For a description of this proposal, see “Senate Fails to End Loans Cold War,” 4.

10 See International Law Association, “Report of the Seventy-Fifth Conference,” 223, 233.

11 Committee members who actively participated in the project were Thomas Adlercreutz, Kaare Bangert, Ernesto Becerril, Margaret Beukes, Kevin Chamberlain, Patricia Conlan, Piers Davies, Talia Einhorn, Craig Forrest, Manlio Frigo, Sabine Gimbrère, Kristin Hausler, Andrzej Jakubowski, Toshiyuki Kono, Shigeru Kozai, Bruce Mauleverer, Elina Moustaira, James Nafziger, Robert Paterson, Marc-André Renold, Jorge Sanchez Cordero, Beat Schoenenberger, Kurt Siehr, Nout van Woudenberg, and Ana Vrdoljak.

12 Malewicz v. City of Amsterdam, 362 F.Supp. 2d 298 (D.D.C. 2005); 517 F. Supp. 2d 322 (D.D.C. 2007).

13 Statement of Interest of the United States, 4 (22 Dec. 2004).

14 Tribunal Courts and Enforcement Act 2007, pt. 6, §§ 134–138.

15 See ICOM, “Code of Ethics” (2004).

References

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