Definitions

As a legal term, property includes private and public property. The former notion refers to the entitlement of natural and legal persons to an object—whether movable or immovable, tangible or intangible—and to the fact that they have substantial domination over such an object. Indeed, domestic property law confers rights to proprietors in the form of an ability to acquire, possess, use, alienate, destroy, and dispose of an object. As such, property can be viewed as a bundle of rights. However, the concept of private property is not to be identified only with physical possession. Further reflection shows that an ownership right entails a relation not between an owner and a thing, but rather between the owner and other individuals in reference to that thing. In effect, the essence of private property is the right to exclude others.^{Footnote 6} These arguments allow the recollection that the right to property is one of the fundamental human rights that can be invoked by individuals, firms, and other private actors against states’ interference. On the other hand, the term public property refers to state-owned assets and originates from the virtually unlimited and exclusive state’s power to legislate on the distribution and management of resources that are situated on the national territory. Thus, public property is equal to control and is closely linked with sovereignty and the construction and regulation of social structures.^{Footnote 7}

Having illustrated the dual dimension of the core idea of property, it is worth pausing to look at the notion of “cultural property.” But what is it? National heritage legislation employs a wide variety of definitions, ranging from the use of very general language to the specific designation of what is protected according to criteria that relate to historical, scientific, or artistic values or interests, to the age, or certain periods, or styles. Likewise, international treaties do not rely on a unique definition. The 1954 UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 UNESCO Convention) defines cultural property to include immovable as well as movable property “of great importance to the cultural heritage of every people.” It then goes on to provide a non-exhaustive list of categories including religious and secular monuments and archaeological sites. For the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970 UNESCO 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.” In addition, that property must fall within one of the categories listed in Article 1.^{Footnote 8}

Various scholars have criticized the use of the concept of “property” with regard to art objects. Patty Gerstenblith pointed out that the terms “culture” and “property” are “potentially conflicting elements.” The reason is that the former term “describes the relationship between a group and the objects it holds important,” while the latter centers “on legal rights of individuals to possession of objects.”^{Footnote 9} Likewise, others scholars have emphasized that property “focuses on the utility of markets […] and commodities,” whereas the term culture refers to “interests that are sometimes inexplicable in market terms.”^{Footnote 10} Furthermore, the use of the term property with regard to art objects has been criticized as it emphasizes private ownership as well as the exclusive sovereign interests of the territorial state at the expenses of the cultural—intangible—aspects of art objects. In other words, the term property carries an implicit choice and ordering of the importance of values.^{Footnote 11} In the words of Edward Rothstein, “the very notion of cultural property is narrow and flawed” because it “illuminates neither the particular culture involved nor its relationship to a current political entity. It may be useful as a metaphor, but it has been more commonly used to consolidate […] state control.”^{Footnote 12}

The expression “cultural property” has been “corrected” by the concept of “cultural heritage.”^{Footnote 13} In effect, the latter notion was introduced to transcend the limits of the former. The objective was to transform cultural manifestations into a collective interest with a view of heightening legal protection and reflecting the sentiment that everybody is affected if great works of art are locked away from public display, stolen, smuggled, destroyed, or vandalized. Hence, the term “heritage” symbolizes different characteristics and relationships between objects and peoples than the term “property” does. It also reminds us of ancient civilizations as well as traditions, customs, and achievements that have been inherited from the past.^{Footnote 14} In sum, the shift from “property” to “heritage” indicates that the legal framework governing property was insufficient to preserve and take full account of the interests and values associated with monuments and art objects.^{Footnote 15} Nevertheless, the term “cultural heritage” should be regarded as including—rather than replacing—the term “cultural property.”^{Footnote 16}

Domestic Law and the Ownership of Art Objects

Property rights are created and defined by domestic law—albeit not exclusively, as we shall see. In effect, the constitution of virtually every state recognizes the right of natural and legal persons to own property, although the precise formulation of the right varies to some extent.^{Footnote 17} Moreover, almost all states have enacted specific legislation providing more protective and less trade-oriented rules for art objects than the regimes normally applied to ordinary goods. These laws may pursue various functions such as: (i) defining the limits and extent of state property; (ii) controlling the alienation of materials through provisions regulating the right of state pre-emption; (iii) regulating the exportation or the location within the state of artifacts belonging to the national heritage through their registration with one or more inventories; and (iv) imposing limits on the use of privately-owned cultural assets. Hence, state authorities have the power to circumscribe (or expropriate) individual property rights. The aim underlying this interventionist policy is to preserve the national patrimony, this being an essential value, the protection and promotion of which are incumbent on the public authorities.

It is worth taking a closer look to the state legislation adopted to fight against illicit trafficking of movable cultural materials. Although these national laws vary between countries, they tend to take two forms. First, there are the patrimony laws that provide that ownership of certain categories of cultural objects is vested ipso iure in the state. Consequently, the role of the state is not that of the guardian or custodian on behalf of the real owners, but that of exclusive owner. This means that the person removing an antiquity without permission is a thief and that such antiquity is stolen property. Second, there are the norms prohibiting or restricting the export of cultural materials. In contrast to patrimony laws, export controls do not affect the title to objects because their fundamental purpose is to prevent the outflow of artworks and antiquities that are important to the national patrimony. Export controls apply not only to artifacts inscribed in the state patrimony, but also to objects that are in private ownership. The distinction between patrimony laws and export regulations is critical because only the former category enjoys extraterritorial effect. As posited by John Merryman, “[i]t is an established principle of private international law that nations will judicially enforce foreign private law right.”^{Footnote 18} Such rights include the ownership rights conferred to the state by domestic laws.^{Footnote 19} This is due to the fact that theft is universally recognized as a crime.^{Footnote 20} On the contrary, a state is not obliged to recognize and enforce the export regulations of another state. In other words, although a country can legitimately enact export control laws, it cannot create an international obligation for other nations to recognize and enforce those measures.^{Footnote 21}

These law-based property rights are routinely relied on in proceedings concerning the recovery of art objects: (i) stolen from a private or public collection; (ii) expropriated by government authorities in breach of existing rules; (iii) exported from the country of origin in contravention of export rules; or (iv) pillaged during armed conflicts or occupation.

International Law and the Ownership of Art Objects

Due to the pervasive nature of international law and the advent of treaties in the fields of human rights, foreign investment and cultural heritage, today national property regimes—and hence the property rights of private actors—are increasingly affected by international law.^{Footnote 22} These regional and international instruments include: (i) the human rights conventions that recognize the right to property,^{Footnote 23} and the rights that allow individuals to act in the protection of such a right, such as the right of access to justice (which is encompassed by the international human right to fair trial)^{Footnote 24} and the right to an effective remedy;^{Footnote 25} (ii) the bilateral investment treaties stipulated under the ICSID system,^{Footnote 26} which aim at reducing the uncertainty for foreign investors about the destiny of their assets and entitlements in the host state; and (iii) the cultural heritage treaties adopted under the auspices of UNESCO that deal with the issue of illicit trafficking. More specifically, these latter treaties call on states to cooperate with a view to: (i) respecting the ownership rights created by the domestic law of the states from which cultural objects have been wrongfully removed;^{Footnote 27} (ii) preventing and fighting against theft, pillage, misappropriation, or illicit exportation of art materials owned by states or private actors;^{Footnote 28} (iii) preserving the integrity of every country’s national patrimony, including the archaeological heritage, whether situated on land^{Footnote 29} or underwater;^{Footnote 30} and (iv) securing the restitution of stolen or illicitly exported cultural objects.^{Footnote 31} Various domestic courts and international bodies have (re-)interpreted the nature and scope of the right to property contained in cultural heritage and human rights treaties.^{Footnote 32}

It follows that the historical impenetrability of national property regimes has come to an end.^{Footnote 33} Today the domestic laws regulating the property rights of individuals, business, and other private actors are affected by international law in that it: (i) creates property rights;^{Footnote 34} (ii) protects property rights stemming from municipal law; (iii) establishes uniform standards to coordinate or harmonize property rights created under national law; and (iv) restricts or prohibits property rights authorized under municipal law.^{Footnote 35}

Definitions and Legal Bases

The principle of state immunity is a basic precept of customary international law that grows out of the doctrines of sovereignty and equality of states.^{Footnote 36} It can be regarded as a legally binding organizational principle developed to prevent foreign courts from interfering with the exclusive state authority as recognized by international law.^{Footnote 37} At one time, immunity was absolute as proceedings against foreign states were inadmissible without their consent.^{Footnote 38} Yet, the judicial activism of some national courts marked a gradual shift from an absolute theory of immunity to a narrower rule providing for a restrictive (or relative) immunity. Under this restrictive theory, a state is immune from the jurisdiction of foreign domestic courts in respect of claims arising out of governmental activities (jure imperii); it is not immune, however, from the exercise of such jurisdiction in respect of claims arising out of activities of a kind carried on by private persons (jure gestionis). Immunity from enforcement is granted on the basis of the same rationale: state property located in the territory of another state can be subject to measures of constraint where the property in question is in use for an activity not pursuing government non-commercial purposes. Moreover, it must be emphasized that states can waive at any time the defense of sovereign immunity and that the rules governing immunity from jurisdiction and immunity from execution are dissimilar: immunity from suit aims to shield states from being sued by impeding the initiation of legal proceedings in the forum state, whereas immunity from execution is meant to protect state property from pre- or post-measures of constraint. Furthermore, immunity rules must be applied separately: even if a state is not immune from the jurisdiction of a foreign court, it does not mean ipso facto that its property can be the subject of measures of constraint on the territory of the forum state or on that of a third state.^{Footnote 39} The reason of this difference is that the “[e]nforcement against State property constitutes a greater interference with a State’s freedom to manage its own affairs and to pursue its public purposes that does the pronouncement of a judgment by a national court of another State”.^{Footnote 40}

Besides international customary law, the rules on state immunity have been codified in the UNCSI. This treaty lays down a general rule—that a state has immunity, for itself and its property, from the jurisdiction of other states’ courts—and provides a number of (exhaustive) exceptions to it, thereby drawing a line between those situations in which a state may properly claim immunity and those in which immunity cannot be granted.

As for immunity from execution, the UNCSI provides that neither pre-judgment (Article 18) nor post-judgment (Article 19) measures of constraint can be taken against state property. Specifically, Article 19 provides that no measures can be taken “against property of a State unless […] (a) the State has expressly consented to the taking of such measures […]; or (b) the State has allocated or earmarked property for the satisfaction of the claim […]; or (c) it has been established that the property is specifically in use or intended for use by the State for other than government non-commercial purposes and is in the territory of the State of the forum […]”.^{Footnote 41} In contrast to Article 19, Article 18 contains no “commercial use” exception. Thus, pre-judgment measures of constraints are prohibited against state property unless and to the extent that the state “has expressly consented to the taking of such measures” or “has allocated or earmarked property for the satisfaction of the claim […].”^{Footnote 42}

UNCSI Article 21(1) lists five categories of state-owned property that by their very nature should be taken to be in use or intended for use for governmental purposes within the meaning of Article 19(c). Thus Article 21(1) prohibits the taking of post-judgment measures of constraint against specific categories of property, unless the state has expressly consented to the taking of such measures in accordance with Article 19(a) or has allocated or earmarked the property in accordance with Article 19(b). The following two categories are relevant for the purposes of the present study: “property forming part of the cultural heritage of the State or part of its archives and not placed or intended to be placed on sale,”^{Footnote 43} and “property forming part of an exhibition of objects of scientific, cultural or historical interest and not placed or intended to be placed on sale.”^{Footnote 44} Apart from the obvious fact that Article 21(1)(e) has a greater practical import in relation to movable—rather than immovable—artworks on loan, it must be stressed that these norms apply only provided that these categories of cultural materials form part of the cultural heritage of a State and are “not placed or intended to be placed on sale.” This means that Article 21(1)(e) applies to the items sent abroad on loan for inclusion in exhibitions even if the public pays to view and notwithstanding the fact that the loan itself entails a profit or compensation for the lending state. On the contrary, this provision does not apply to the objects exhibited at art fairs designed to promote sales.^{Footnote 45} In sum, Article 21(1)(e) ensures that states involved in art restitution cases in foreign countries do not risk to lose their sovereign powers over a fundamental component of their history and identity.^{Footnote 46}

The follow-up question is how to determine which property forms part of the cultural patrimony of a state. The obvious answer is that this should be determined by the relevant legislation of that state. However, it has been pointed out that the term “property of a State’ as used in Article 21(1)(e) should be interpreted broadly, so as to encompass property merely possessed or controlled by a state. The reason is that many items in public collections are held by the state even though they are owned by private owners. However, it can be argued that art objects on loan can be immune from enforcement measures under UNCSI provided that the lending state proves that it has a valid legal title to lend an object under domestic legislation.^{Footnote 47}

In the judgment Jurisdictional Immunities of the State, the ICJ held that the commercial use exception of Article 19(c) reflects customary international law. Instead, the court did not dwell on the status of Article 21. It has been submitted, however, that the rule embodied in Articles 21(1)(d) and 21(1)(e) does not belong to customary international law because it is quite “novel”—even if state practice with respect to the legal protection of cultural exhibits on loan has developed in the past years.^{Footnote 48}

Domestic Anti-Seizure Statutes

Various states have passed legislation granting immunity from seizure to objects temporarily on loan from foreign states or state museums for exhibition purposes. These anti-seizure laws ensure that art objects will be returned to the lender without legal hindrance when the loan period expires.^{Footnote 49} As such, these statutes have a twofold effect: (i) preventing the seizure of loaned artworks by the courts of the borrowing state for reasons extraneous to the loan agreement; and (ii) facilitating inter-state cultural exchanges by defeating the reluctance of museums and collectors to loan their artworks to foreign jurisdictions.

Noticeably, states have passed anti-seizure laws mainly in response to court cases triggered by attempted seizures.^{Footnote 50} In practice, there appear to be two main scenarios. The first occurs when individuals bring ownership action in the borrowing state based on the theft of artworks from their ancestors and on the inability of any later alienation to extinguish the original title. When claimants are states, the action is based on the breach of domestic patrimony laws. The second scenario—which will not be examined here—arises where a creditor of the lender, having obtained a judgment against him, seeks to seize the lender’s assets situated in the borrowing state to secure satisfaction of the judgment.^{Footnote 51} In both scenarios, claims are filed in the borrowing state because action or enforcement are not available in the lender state. For instance, this is the case when the laws of lending states favor the good faith purchaser of stolen artworks over the victims of theft.^{Footnote 52}

The enactment of anti-seizure statutes demonstrates that states are not persuaded that the courts of other states will unconditionally afford immunity to their cultural heritage items on loan on the grounds of their jure imperii character. In other words, the customary law principle of state immunity is considered as an insufficient doctrine to assure that art objects protected under state patrimony legislation will not be subject to enforcement measures while on loan in the borrower’s jurisdiction.^{Footnote 53} One reason for this mistrust has to do with the fact that legislation can be more easily ascertained and enforced than customary international law. Another reason is that it is not clear whether a loan of state-owned art can be considered as an act jure imperii or jure gestionis. At one level, it can be argued that the loan of art objects constitutes a non-commercial transaction. The main reason is that art loans can be seen as state acts aimed at fostering cultural exchange and hence the mutual understanding between states. Under this approach artworks on loan would be immune from seizure. At another level, it cannot be denied that art loans also have the earmarks of commercial acts. These can be performed by states and private entities alike and habitually entail compensation by direct monetary payment and the sale of tickets and souvenirs.^{Footnote 54} Consequently, from this point of view state-owned artifacts on loan would not be immune from seizure by virtue of the doctrine of sovereign immunity.^{Footnote 55}

In this respect, the UNCSI is a breakthrough. As said, this Convention singles out art objects on loan as a category of property to be considered in use for non-commercial transactions (Article 21(1)(e)). However, it must be noted that Article 2(1)(c) UNCSI provides a broad definition of “commercial transaction”,^{Footnote 56} whereas Article 2(2) states that in determining whether a contract or transaction is a “commercial transaction” under Article 2(1)(c) “reference should be made primarily to the nature of the contract or transaction, but its purpose should also be taken into account if the parties to the contract or transaction have so agreed, or if, in the practice of the State of the forum, that purpose is relevant to determining the non-commercial character of the contract or transaction.” Obviously, the application of either the nature criterion or the purpose criterion can lead to different results. Indeed, it can be submitted that an art loan is by nature an act jure gestionis, whereas the purpose of the loan of state-owned art objects is one jure imperii. Therefore, application of the purpose criterion will result in a much more extensive immunity for a state than the application of the nature criterion.