TERRITORIALITY OF CULTURAL HERITAGE—THE MEANING

In international law and scholarship, territoriality, in relation to cultural material, means that it is the nation-state that determines which objects form its cultural heritage and the nation-state is responsible for their protection.^{Footnote 4} In broader terms, it assumes the existence of special territorial bonds attached to cultural objects. This concept laid the foundations for the principle of protection of the integrity of national cultural heritage and the correlated obligation under international law to return unlawfully displaced cultural objects to the place(s) from which they were taken.

The concept of the territoriality (or territorial provenance) of cultural heritage objects and sites emerged in the 19th century from two major sources. Its first origin referred to the principle of territoriality governing the restitution of movable objects as the result of peace settlements concluding wars in the European continent. The second related to considerations in the matter of the allocation of public archives pertaining to ceded lands in cases of territorial transfers. Subsequently, the principle of territoriality concerning the transfer of archives was extrapolated to state property forming part of the intellectual patrimony of a state. Yet such a linkage was defined differently with respect to ordinary state archives and with respect to works of art, libraries, or other property with a cultural or scientific significance. Accordingly, the allocation of state archives was based on territorial pertinence, while the principle of territorial provenance was applied to cultural patrimony (e.g., Article XVIII of the 1866 Vienna Treaty of Peace between Italy and Austria-Hungary^{Footnote 5}).

At the end of World War I (WWI), the distinction between the legal regime of restitution applicable to cultural property seized during war and that of state succession became fully recognized. Despite the fact that both regimes were founded on the paramount principle of territoriality, binding cultural property to a given territory, their objectives were different. Accordingly, the norms of international law on the restitution of cultural property to the territory from which it was removed during wars constituted a corollary of the prohibition of acts of destruction against property and buildings dedicated to religion, education, art, and science. Importantly, the destruction and pillage of such property had been prohibited under binding international instruments on the conduct of war since the Peace Conferences of 1899 and 1907. In addition, the principle of territoriality in cases of state succession provided that territorial transfers entailed not only the transfer of cultural property located in the lands in question, but also the repatriation of property removed from the territory subject to state succession prior to the date of succession (e.g., Article 11 of the 1921 Treaty of Riga between Poland, Russia, and Ukraine^{Footnote 6}). This principle thus safeguarded the economic and cultural integrity of the territory. The difference between these two regimes did not mean, however, that in reaching settlements in specific cases they could not be jointly taken into consideration, especially when state succession escalated into or arose from armed conflict, as so often was the case.

The immense losses in tangible cultural heritage in many countries as a consequence of World War II (WWII) forced the international community to adopt more efficient mechanisms for the protection of such material in the event of armed conflict. The Allied restitution program, proclaimed by the 1943 London Declaration,^{Footnote 7} fully reaffirmed the paramount nature of the principle of territoriality, which governed both the restoration of cultural property removed by the use of force or under duress during war and the allocation of such materials in state succession. Indeed, some of the post-WWII peace treaties (e.g., Article 1 of Annex XIV to the 1947 Paris Peace Treaty with Italy^{Footnote 8}) provided for the unconditional restoration of such properties originating from the ceded territories. Yet the profound changes in Europe’s territorial boundaries, accompanied by the displacements of entire national and/or ethnic groups, also led to the tacit recognition of the priority of the collective cultural rights of a group over the general principle of territoriality. In fact, cultural property often followed the destiny of displaced communities, though such a principle for allocation was not explicitly formulated by interstate arrangements. Moreover, during the process of decolonization initiated after WWII, the predecessor states (former colonial powers) displayed a common and firm resolve not to share the cultural resources acquired during colonialism with the newly independent postcolonial states. There were only a few cases that regulated the allocation of cultural property in accordance with the principle of territorial linkage.

Alongside this contradictory interstate practice, the subsequent codification of international law for the protection of cultural property reaffirmed the rudimentary nature of territorial provenance. It has been widely recognized that each culture deserves equal treatment and protection. Furthermore, it has been affirmed that the impoverishment of the cultural heritage of one country constitutes not only an internal issue, but is also part of the common concern of all humanity, as “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world.”^{Footnote 9} This has occurred in two discrete areas: (1) protection of cultural property in the event of armed conflict, comprising the obligation to provide restitution for cultural items removed from militarily occupied territories, regulated under the 1954 Hague Convention and the 1954 Hague Protocol; and (2) the prohibition and prevention of the international transfer of cultural property illicitly removed from a national territory in times of peace, by means of the procedural principle of cooperation provided by the 1970 UNESCO Convention.^{Footnote 10} Arguably, these two regimes fully affirm that the protection of cultural property in its original historical, geographical, and cultural contexts constitutes one of the major foundations of the current international cultural legal order. Thus, it appears that international cultural heritage legislation has reinforced the principle of territoriality also with respect to the allocation of cultural property in state succession. This particularly refers to the property removed from a territory subject to succession in the event of or aftermath of armed conflict or in violation of national law on the protection of cultural heritage.

Since the mid-1960s, the disappointment of newly independent (postcolonial) states with respect to the restoration of their tangible cultural heritage has fostered the restitution debate in various international forums. These states have argued that they are entitled to the cultural property, irrespective of its current legal status, removed from their respective territories as a result of violent colonial exploitation and the discriminatory policies of foreign occupants.^{Footnote 11} While such claims were in line with the international legal norms ordering the restitution of cultural property displaced from territories subject to military occupation, they went far beyond the existing application of the principle of territoriality in cases of state succession. In fact, the codified rules on the succession of states to state property under the 1983 Vienna Convention^{Footnote 12} did not include any special regime concerning the transfer of cultural property. Moreover, the two main criteria for the transfer of state property established by this treaty—the territorial location of property at the date of succession and the connection with the activity of the predecessor state in the territory subject to state succession—hardly reflect the nature of cultural heritage disputes following changes of territorial sovereignty. Importantly, the most complex issues that relate to removals from dependent territories prior to their independence have been deliberatively left to the system of international cultural cooperation created by UNESCO, favoring bilateral agreements over any automatic solutions based on the principle of territorial provenance.

The new wave of state succession that occurred after 1989 has once again addressed the issue of the allocation and distribution of state cultural property in accordance with the territorial origin of an object. In fact, the principle, despite its rudimentary nature, has extensively been applied in the succession agreements (e.g., between the Czech Republic and Slovakia, between the states of the Commonwealth of Independent States and between the successor states of Yugoslavia) on the allocation of state cultural property with respect to the recent wave of state succession. However, actual state practice has been rather disappointing, as only the Czech Republic and Slovakia have managed to finalize the division of state cultural property in accordance with this principle.^{Footnote 13}

TERRITORIALITY “IN PRACTICE”

The post–Cold War succession agreements on the allocation and distribution of cultural property have largely resulted in failure. This does not mean, however, that states are not searching for alternative solutions. In fact, they are often driven by a strictly political or more precisely—diplomatic—concept of cultural reconciliation, extensively used in recent international politics. International practice has manifested a common reluctance of states to apply any legal argumentation with respect to the allocation of cultural property in state succession. In a number of recent instances, actual returns have been made on the basis of moral considerations or ex gratia gestures in the framework of friendly relations between states. Such gestures constitute a highly convenient diplomatic instrument for predecessor states. Through the voluntary return of most claimed objects, they manifest their “good faith” and may often avoid long-lasting legal disputes and political controversies over the status of cultural property removed from the territory of the successor states. In addition, the increasing development of international cultural heritage law for interstate relations may affect the solutions agreed upon between states with respect to the allocation of cultural property. In particular, the role of the general procedural principle of cooperation in the sphere of cultural heritage cannot be underestimated. This principle, introduced at the universal level by the 1945 UNESCO Constitution^{Footnote 30} and the subsequent 1966 UNESCO Declaration of Principles of International Cultural Co-operation,^{Footnote 31} is driven by the common concern of the entire international community in the protection of cultural heritage in its local, national, and global dimensions.^{Footnote 32} Moreover, it is also recognized that cultural cooperation and protection of cultural heritage serve as efficient tools in postconflict reconciliation and the stabilization of states and their boundaries.^{Footnote 33} This is the case of the legacy of WWII with respect to the extensive territorial reconfigurations and population transfers that occurred between Germany, Poland, and Ukraine in 1944–46.

The post-WWII situation of Poland constituted one of the most complex cases concerning the allocation of cultural objects and material. As a result of the 1945 Potsdam Agreement,^{Footnote 34} Poland’s state boundaries and its ethnic composition were greatly altered. It lost nearly half of its former territory in the east to the USSR, and it obtained vast territories to the west at the expense of Germany. This was decided on the basis of Chap. X.B. para 2 of the Potsdam Agreement, which held that, “pending the final determination of Poland’s western frontier,” the former German territories situated to the East of the Oder-Neisse line, including the portion of East Prussia not placed under the administration of the USSR, comprising the area of the former Free City of Gdansk (Danzig) would pass under the administration of the Polish State. At the same time, pursuant to Chap. XIII of the 1945 Potsdam Agreement, the transfer of the German population was ordered. Consequently, Poland, while losing its eastern historical territories, obtained large western territories of a predominantly German cultural character.

No peace treaty was signed with Germany, and the territorial changes were not sanctioned by either of the states concerned. Thus, the new western border was not confirmed until the 1950 agreement with the German Democratic Republic (GDR; the former East Germany),^{Footnote 35} and the 1970 treaty with the Federal Republic of Germany (FRG; at the time, West Germany).^{Footnote 36} The final border treaty was not concluded until 1990,^{Footnote 37} 45 years after the end of WWII. In these circumstances, Poland and both German states did not make any arrangements as to the status of German property, including cultural objects and material, situated in the territories granted to Poland. From 1945^{Footnote 38} to 1946,^{Footnote 39} the question was unilaterally decided by the new communist Polish government. Accordingly, all property situated in the former German territories, irrespective of its prewar status, was nationalized. This referred to all state, municipal, ecclesiastical, and private property.^{Footnote 40} The first consideration underlying this solution was to put an end to the ambiguity of the status of property in the newly acquired territories. Second, German property was treated as partial compensation both for the property destroyed during the war and occupation and for the patrimony left in the Polish provinces transferred to the USSR.

Both the Polish government and Polish legal theory at the time argued that all the cultural objects and material situated in the German territories annexed in 1945 passed legitimately to the Polish State,^{Footnote 41} as the decisions of the Allied Powers were definitive. This also referred to cultural material evacuated at the end of WWII by the German administration, located in territory that in 1945 passed to Polish rule, which included part of the famous Berlin (Prussian) State Library—one of the largest and most influential repository of materials in the German language.

Importantly, in the bilateral relations between Poland and East Germany, the question of state succession with regard to cultural property was inserted into the broader problem of postwar restitution of displaced cultural property. During the Cold War, there were some exchanges of cultural objects between the governments of Poland and the GDR, but they never took the form of a systematic settlement of war plunder and postwar territorial reconfigurations. Moreover, the exchanges resembled more of a political “gift” ex gratia than of any legally based solution. Thus, many objects and collections originating in the territory of Poland and, as of 1945, evacuated or looted in the last days of war to the West of the Oder-Neisse line, did not return to their original locations. Similarly, some German collections stored in the territories taken over by Poland, in particular the priceless collection of the Prussian State Library, were not handed back to the GDR and remained in the possession of Polish institutions.^{Footnote 42}

With reference to Polish–West German relations, the question of cultural property was not approached until the end of the Cold War. However, the legality of the unilateral Polish compensation and property transfers was perceived differently by Polish and West German lawyers.^{Footnote 43} The core issue in these controversies was the interpretation of the 1945 Potsdam Agreement and its international consequences. Accordingly, the Polish doctrine argued that the Potsdam Agreement, being a valid international instrument, had constitutive effects with respect to all the states concerned. Conversely, the FRG’s state doctrine and West German legal scholarship claimed that the issue of borders and property transfers could only be settled in a peace treaty signed with a unified Germany. In the meantime, according to the West German legal doctrine Poland was only an administrator of the former German territories.^{Footnote 44} Consequently, all the arrangements with respect to property undertaken by Poland were unlawful, or at least not legally sanctioned. This also referred to the nationalization of cultural property.^{Footnote 45}

Following Poland’s transformation into a democratic, free-market state and the unification of Germany, all these issues were immediately addressed. In November 1990, both states concluded a border treaty and in 1991 signed the Treaty on Good Neighbourly Relations and Friendly Cooperation,^{Footnote 46} whose objective was “to close the painful chapters of the past, and determined to pick up the thread of the good traditions and friendly coexistence over the centuries-long history of Germany and Poland” (preamble). Accordingly, both states undertook to “shape their relations in a spirit of good neighbourliness and friendship …, strive for a close, peaceful cooperation, based on principles of partnership, in all spheres” and pledged to “endeavour to realize the wish of their peoples for lasting understanding and reconciliation” (Article 1(1)).

The same language of collaboration and historical and European responsibility was employed with regard to the issue of cultural heritage. Under Article 28, both states decided that they would “cooperate in the preservation and nurture of the European cultural heritage.” Arguably, this inclusion of the cultural heritage of both states within a larger European framework was very far-reaching, since many of the cultural sites situated on the Polish and German border are of a multiethnic and universal character (e.g., the historic cities of Wroclaw [Breslau] and Gdansk [Danzig]). Thus, many actions and projects aimed at historic monuments could be conducted on a joint, multilateral, or European basis, without prejudice to national sentiments. Moreover, both states also obliged themselves to

Subsequently, the 1991 Polish–German treaty stated that both states would in “the same spirit” seek “to solve problems relating to cultural assets and archives, beginning with individual cases.” The last provision was particularly important for the pending controversies over the concrete lists of cultural items requested by both sides. Since the solution of such disputes was greatly conditioned by the contradictory interpretations of the international effects of the 1945 Potsdam Agreement, Poland and Germany decided that their settlement would be negotiated on a case-by-case basis, in the spirit of reconciliation.

After a very promising beginning in 1992–1995, the whole process of negotiations was interrupted. The main controversy related to the collections of the Prussian State Library, evacuated at the end of WWII by the German administration, located in territory that in 1945 passed to Polish rule.^{Footnote 47} Germany claimed their return on the grounds of international humanitarian law proving that, at the time of war, all seizure of historic monuments, works of art, and science is forbidden. Moreover, the collections of the Prussian State Library constitute symbols of German national culture and history and are linked to the Germans, not the Poles. In addition, Poland’s state sovereignty over the concerned territories was questionable. Conversely, Poland argued that it rightfully acquired the title to the collections, on two bases. First, Poland acquired all the state property situated in the territories assigned to it by the 1945 Potsdam Agreement, including cultural property. Second, the collection of the Prussian State Library had to be treated as restitution-in-kind or reparation for the immense losses in Polish national cultural patrimony caused by the Nazis and never recompensed under Cold War conditions. In this context, Poland recalled the Nazis’ intentional destruction of the public and private libraries of Warsaw in 1944, including the precious collections of the Polish National Library.^{Footnote 48} Thus, this argumentation touched upon the question of rectification justice in international law and policy.^{Footnote 49} Clearly, the first Polish argument cannot be arguably sustained, as both territorial and national features of the cultural property at stake indicate Germany as the state and community of origin. The second line of argumentation is more convincing in light of the international practice prior to 1945 with respect to reparations for war damage to cultural heritage. However, the form of reparation must never be subject to a unilateral decision.

As of 2013, the two states had not managed to settle this problem, even though the number of solutions based on various forms of joint management have been discussed. Moreover, it might seem that any compromise would be unacceptable since both states are involved in other negotiations on displaced cultural objects and are not interested in creating any “inconvenient” precedents. The failure of these negotiations with respect to the collections from the Prussian State Library have not, however, interfered with the interstate cultural cooperation in some other important areas. Indeed, both states have launched joint cultural projects through a special bilateral commission established on the basis of a 1997 cultural agreement.^{Footnote 50} In particular, both states have undertaken programs in the spheres of conservation, research, and the restoration of cultural patrimony as well as museum exchanges. The latter applies not only to short-term art loans but also sometimes long-term deposits,^{Footnote 51} the aim being to reconstruct the original historical or artistic context when the effective restitution of an object has been virtually impossible due to the impasse in the diplomatic negotiations.^{Footnote 52}

Yet the climate surrounding these issues has recently changed due to the important shift in German museum restitution policy affected by the so-called Gurlitt affair. The discovery of the art collection of Hildebrand Gurlitt, a Nazi art dealer, and subsequent developments of the case have re-opened a discussion on the status of cultural objects displaced or lost under the Nazi regime. In fact, in 2014 a first return from Germany of an artwork long-claimed by the National Museum took place.^{Footnote 53} It is, however, too early to assess how these new developments will affect the entire Polish-German dispute on the fate of cultural material displaced in connection to WWII and state succession. Similar problems as those described with reference to German–Polish relations also mark the controversies between Poland and its eastern neighbors. These are especially relevant to Ukraine, where in the multiethnic city of Lviv (Lvov), Polish art and library collections have been established since the beginning of the 19th century. The most important Polish cultural and scientific institution was the Ossolineum, an entity founded for the Polish community of Lviv by private donors. As a consequence of the Soviet invasion in 1939, the city and its treasures were captured and annexed to the Ukrainian Soviet Socialist Republic (Ukrainian SSR). Under the post-WWII arrangements, Poland had to accept both the cession of its eastern territories to the Soviet republics, as well as the resettlements of nearly the entire Polish population on the ex-German territories. The question of the allocation of Polish cultural property in the East was not settled under Soviet rule. In 1944–1946, only a small portion of the cultural material and objects was transported to the West. This was the case for some sections of the Ossolineum, which was institutionally reestablished in Wrocław in 1946. The rest of the collections were divided by the Soviet authorities between different entities in the territory of the Ukrainian SSR. Immediately after the split-up of the USSR, Poland formulated claims on the repatriation of cultural treasures from Ukraine, especially in the cases of private and institutional succession. However, there was no agreement as to the appropriate extent of such claims. Some governmental experts have demanded a “total repatriation” of Polish cultural property, while others have taken a much more moderate view, arguing that “the large scale repatriation of cultural objects, as laid down in the post-war plans, would lead to a cultural cleansing and gross misrepresentation of the history of the Former Eastern Territories of the Polish Republic.”^{Footnote 54} Thus, the moderates’ potential claims only refer to collections of great public interest, namely, the Ossolineum and the Library of the last Polish King, Stanisław August Poniatowski,^{Footnote 55} which was removed by Tsarist Russia to Kyiv (Kiev).

In 1992, Poland and Ukraine signed a treaty on Good Neighbourliness, Friendly Relations, and Cooperation.^{Footnote 56} In this treaty they reciprocally confirmed the existing state boundaries and undertook to cooperate in the spirit of reconciliation and understanding to “overcome prejudices and negative stereotypes in relations between both nations” (Article 12), recalling international standards expressed by the UNESCO conventions, the 1953 European Cultural Convention, and documents of the Commission on Security and Cooperation in Europe (CSCE), especially the Document of the Cracow Symposium on the Cultural Heritage of the Organization for Security and Cooperation in Europe (OSCE) participant states^{Footnote 57} (Article 13.1). Ukraine and Poland obliged themselves to provide adequate protection and accessibility of tangible and intangible cultural heritage (“values, monuments and objects”) in their respective territories (Article 13.4). Both states would also act to ensure the disclosure, preservation, unification, and accessibility of cultural heritage. Moreover, they would seek, in accordance with the norms of international law, bilateral agreements, and other international standards, to disclose and return cultural and historical objects lost, illegally removed, or in any other way displaced in the territory of the other side (Article 13.4).

The idea of the reunification of the dispersed collections was also expressed in an additional preliminary agreement for cultural cooperation (Article 5.1), as follows:^{Footnote 58}

In 1996, Poland and Ukraine signed an intergovernmental agreement on cooperation regarding the protection and return of cultural items that had been lost or illegally moved during WWII.^{Footnote 59} On its basis, in mid-May 1997 a Joint Commission was established. Poland presented a very broad list of requested cultural items owned prior to 1939 by the Polish State and private institutions as well as private individuals.^{Footnote 60} In the same month, both states signed a general agreement on cultural cooperation,^{Footnote 61} which under Article 17 confirmed that illegally removed objects would be returned. However, Ukraine issued an official response to the Polish claims, arguing that all the requested collections constituting the state domain of Ukraine were legally acquired in accordance with the principle of territoriality and could not be alienated or transferred. Subsequent talks concerning the exchange of certain groups of items have not produced any results. Nonetheless, the two states continue to successfully cooperate in terms of the reciprocal conservation of cultural property situated in their respective territories. Importantly, Poland and Ukraine, in 2013, succeeded in inscribing on the World Heritage List a serial transboundary property—a group of wooden tserkvas (Orthodox churches) of the Carpathian Region, situated on their respective territories.^{Footnote 62} According to the nomination file submitted by both governments, tserkvas “are immensely important spiritual centres for local communities, who continue to participate in religious activities contributing significantly to the survival of this unique diversity of religious rites and adding an intangible, emotional context to the significance of these sites.”^{Footnote 63} The last inscription has been of great significance for both nations as well as for borderland local communities, since the territories concerned are profoundly marked by war crimes, ethnic cleansings, and forceful populations transfers committed in the event of WWII. The memory of these events is still present in Polish and Ukrainian communities alike. Apparently, the internationalization of these cultural and religious sites within the framework of the WHC regime has greatly stimulated cross-border cooperation and national reconciliation.

FINAL REMARKS—TERRITORIALITY OF CULTURAL OBJECTS REDEFINED

As demonstrated in the above described cases, in the issue of state succession in matters of movable cultural property, the principle of territoriality, though providing easily predictable solutions, cannot be consistently applied to all scenarios. This is particularly true in the case of the profound post-WWII changes to territorial boundaries in Europe, accompanied by or followed by the displacements of entire national and/or ethnic groups. Moreover, the concretization of the principle of the territoriality is often fraught with difficulties arising from different interpretations of history and cultural ties, as well as contradictory opinions as to the legal consequences of past factual, territorial reconfigurations. Consequently, the principles regarding transfers of cultural property in the event of state succession will continue as a mere nonbinding set of rules, applicable mainly to cases where favorable “political will” is demonstrated.

The state practice of Poland, Germany, and Ukraine has also evidenced the preeminence of bilateral arrangements on cultural cooperation. These have virtually replaced the previous practice based on succession agreements or peace treaty settlements. Indeed, states have tended to settle all the claims which may arise from the past transfers and removals of cultural property within the framework of interstate accords on cultural cooperation and the reciprocal protection of cultural heritage, rather than in succession agreements sensu stricto. The objective of such arrangements lies in the accommodation of different economic, cultural, or scientific interests of the states concerned, in which the question of succession to state cultural property plays a secondary role. Moreover, these cultural cooperation agreements frequently invoke the 1970 UNESCO Convention, which is arguably treated as a basis for both the resolution of current disputes relating to the illicit traffic in cultural materials and the settlement of past situations, including those arising from state succession. Yet the question of common rights and interests to real property and cultural heritage sites essentially consists in interstate cooperation in the conservation of cultural heritage sites that may be of joint interest to the states concerned, or may be of great cultural importance to one of them, according to which the states decide to reciprocally protect their respective cultural patrimonies.

The principle of cooperation in settling the controversies with regard to state succession to cultural property is also linked to the concept of cultural reconciliation. Accordingly, certain gestures of good will are required to put an end to a difficult past and to right historic wrongs. On the basis of such a turning point in mutual relations, the concerned states can foster new friendly relations. The handing over of certain objects important for the cultural heritage of the other party is usually pursued in the form of a voluntary donation, which accompanies other settlements and interstate cultural commitments. In addition, the solutions with respect to movable objects or materials are also promoted and facilitated at various regional and nongovernmental levels. In particular, the practice of long-term loans of cultural objects is regarded as one of the most efficient tools of international cultural exchange.

In this light, one may ask whether the traditionally defined principle of territoriality is still valid for the settlement of cultural heritage disputes arising from the territorial changes accompanying state succession. It seems that it is too early to discard the principle, however. Indeed, territorial ties and territorial provenance continuously serve as the fundamental criterion for the allocation and distribution of cultural heritage objects in state succession. However, the principle of territoriality has gained a new dimension, that is, the responsibility of each state to protect the cultural heritage situated in its territory. This does not exclusively refer to one’s own national heritage but also extends to the cultural heritage of others, and today the protection of cultural heritage is not only an internal domestic issue but also part of the common concern of all humanity and subject to human rights protection.