by Kurt Siehr
The notion cultural property or object (having its equivalents in other languages: Kulturgut, kulturgode, kulturföremål, bien culturel, πολιτιστικόν αγαθόν, bene or patrimonio culturale, cultuurgoed, dobro kultury, bem or património cultural, культурное постояние, kulturminne or kulturföremål, biene or patrimonio cultural, kültür varlιk, kulturális tárgy) has been known since modern times. In no European codification of private law, however, was this term used. Only later the term was introduced in special statutes aimed at protecting national cultural objects from export to foreign counties. Even in Italy, where the modern protection of cultural property originated with the Editto Doria Pamphilj (1802) and the Editto Pacca (1820), the term used was opere dell’Antichità (1802) or cose d’antichità e d’arte (statute of 1913) or cose di interesse storico e artistico (statute of 1939).
The first German Statute of 1919 prohibited the export of ‘art works’ in order to prevent the national ‘possession of art’ from being lost to foreign countries. It lasted until 1954, when in public international law the term ‘cultural property’ was used. Since that time, the term has also become common in other areas. The first official document that used this term was the Hague Convention of 14 May 1954 for the Protection of Cultural Property in the Event of Armed Conflict. The UNESCO Convention of 14 November 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property adopted the term ‘cultural property’ or ‘cultural object’ as did the UNIDROIT Convention of 14 June 1995 on Stolen and Illegally Exported Cultural Objects. The European Union also uses the term ‘cultural good’ or ‘cultural object’ (bien culturel) in Regulation 3911/92 on the Export of Cultural Goods and Directive 93/7 on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State. In more recent treaties, the term ‘cultural heritage’ (patrimoine culturel, Kulturerbe, patrimonio culturale, patrimonio cultural) is preferred. This began with the UNESCO Convention of 21 November 1972 for the Protection of World Cultural and Natural Heritage. In this Convention, mainly immovable objects are protected and for these objects the term ‘cultural heritage’ is more appropriate than the terms ‘cultural property’ or bien culturel. The term ‘cultural heritage’ was accepted later by the UNESCO Convention of 2 November 2001 on Underwater Cultural Heritage and by the UNESCO Convention of 17 October 2003 for the Safeguarding of the Intangible Cultural Heritage. In some languages, the term ‘heritage’ resolved the incorrect impression that, with ‘property’, only tangible objects are protected.
What cultural property is and what is meant with ‘cultural heritage’ is told to us by national statutes and international treaties. Therefore there is no need to try to define a universal notion of cultural property. Such an endeavour, in any event, would be in vain.
2. Importance in national substantive law
In national law, cultural property is important in five respects: for the law of ancient monuments, for protecting national treasures from export, for the return of foreign cultural objects illegally removed, for the return of Nazi-confiscated art objects to the former owners, and for the return guarantee (immunity) of loaned art from abroad.
a) The law of ancient monuments (protection des monuments, Denkmalschutz, tutela dei monumenti) is primarily special administrative (public) law, with certain repercussions in private law. It limits the exercise of otherwise free property rights in respect of objects subject to protection as ancient monuments. In statutes on ancient monuments, certain rules may be found with respect to treasure, according to which finds of scientific interest may be declared as state property.
b) Many countries protect their national treasures from being exported to foreign countries without government approval. If they pursue this policy (and do not, as the United States, reject such an approach), there are two possibilities. Either export may be delayed until a certain time or it may be completely prohibited. The first model is the English one. If a valuable national treasure is sold and is to be exported, but meets the Waverley criteria (close connection with British history and national life, or outstanding aesthetic importance, or outstanding significance for the study of some particular branch of art, learning or history), the export licence may be postponed for a certain time. If nobody is willing to buy the object for permanent stay in the country, the export licence has to be given.
Most other countries have chosen the system of absolute export ban but with some differences. In Germany and Switzerland, there are special lists of cultural objects that must not leave the country without government licence (German Statute on the Protection of Cultural Objects against Removal, version of 8 July 1999; Swiss Cultural Property Transfer Act of 20 June 2003, Arts 3 and 4). In certain other countries, no cultural objects are allowed to leave the country without government licence as, for example, Italy (Italian Codice dei beni culturali e del paesaggio of 22 January 2004, Arts 10 ff) because they are of interesse artistico, storico, archeologico o etnoantropologico. In addition to this protection, most cultural objects are unmerchantable (res extra commercium, demanio pubblico, domaine public) and cannot be sold and are not subject to prescription or statutes of limitation. Foreign courts, however, have in the past been unwilling to give effect to another country’s designation of an object as unmerchantable.
c) Within the European Union, all Member States are obliged to return illegally removed cultural objects to another Member State if the country of origin asks for return and is ready to pay compensation to the bona fide purchaser. This is provided by national legislation implementing Dir 93/7and in the United Kingdom by the Return of Cultural Objects Regulation of 1994 (SI 1994/501).
d) In addition to these obligations under European law, many countries have committed themselves to return certain cultural objects according to well-recognized principles. Germany and other countries agreed to return objects according to the Washington Conference Principles of 3 December 1998 on Nazi-confiscated Art.
e) To protect art objects on loan from abroad from being seized by third persons, many countries have provided a return guarantee or immunity from seizure in favour of the institution giving the loan. Sometimes loans are only given if the borrowing institution guaranties the safe return of the art objects on loan. In the United Kingdom, the relevant provisions may be found in the Tribunals, Courts and Enforcement Act 2007 (Part 6, §§ 134–138), providing such immunity for cultural objects on loan. The same is true for Austria (Immunity Statute No 133/2002), Germany (§ 20 German Statute for Preventing Art Objects from Export), Switzerland (Arts 10 ff Cultural Property Transfer Act) and other countries.
3. Importance in private international law (PIL)
To date, there is no special rule of PIL for cultural objects. Movable cultural objects are still treated according to international property law and hence subject to the old rule of lex rei sitae. Whether a cultural object may be acquired at all or be acquired bona fide or by prescription is decided according to the law governing the purported acquisition at the time of acquisition.
More recently, however, there seems to be a change. In 1991, the Institute of International Law published a resolution according to which the acquisition of cultural objects is governed by the lex originis, ie the law of that state from which the object originates. Also, export control is now decided according to that law (Arts 2 and 3 of the Resolution, Yearbook of the Institute of International Law 64 II, 403 ff). The UNIDROIT Convention of 24 June 1995 followed the same policy in its chapter 2 (see 5. below), and also the new Belgian Statute of PIL of 16 July 2004 accepted this idea and provides in Arts 90 and 92 that cultural objects and stolen objects cannot be acquired if either the lex originis or—if more favourable for the protection of the object—the lex rei sitae prohibits the acquisition.
4. Importance in European law
The European Union does not have an independent policy with respect to the protection of cultural objects. In Art 36 TFEU/30 EC ‘national treasures of artistic, historical or archaeological value’ are exempt from the free movement of goods between the Member States. Protection is awarded by the Member States, and the Union only obliges the Member States to enforce foreign rules prohibiting any removal of such goods. According to Dir 93/7 on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State, all Member States and also Member States of the EEA (Iceland, Liechtenstein and Norway) must provide in their national implementing provisions that any cultural object needing a government licence for removal out of the country of origin must be returned if such a licence was not given and the object was removed across state borders. Any bona fide purchaser in the Member State that has to return the object must be compensated.
Regulation 116/2009 on the Export of Cultural Objects deals with the question of which Member State is competent to give an export licence if a cultural object has to be exported to a third state. This Regulation aims at avoiding the risk that cultural objects of a Member State with severe export prohibitions are removed to a Member State with less stringent ones that would consequently allow the export.
5. Importance in public international law
a) In the law of armed conflict, it was customary until about 1800 that the victorious party could plunder the defeated party and take booty at their discretion. Cultural objects were also taken as booty (eg the Egyptian obelisks in Rome, the Horses of St Mark of Venice from Constantinople, the Burgundy booty in Berne and the Bible of Ulfila from Prague in Uppsala) if they were not simply destroyed or damaged. This archaic attitude changed during the 19th century. The old rules of customary international law were replaced by the Hague Convention of 1907 concerning Laws and Customs of War on Land and the Hague Convention of 1954 on the Protection of Cultural Property in the Event of Armed Conflict, with its protocols. The Hague Convention of 1907 forbade the destruction or seizure of the enemy’s private property (Art 23(1)(g)), made it illegal to attack or bombard undefended buildings (Art 25), provided that steps must be taken to spare buildings dedicated to religion and historic monuments (Art 27), prohibited the pillage of a town or place and pillage in general (Arts 28 and 47) and prohibited the taking of private property and the confiscation of public property that is not being used for military operations (Art 53). There is no special rule for cultural objects as such in the Hague Convention of 1907. Nonetheless, these objects are covered by the Convention and therefore the Federal Republic of Germany demanded from the Russian Federation the return of looted art which was taken out of Germany after World War II. At this time, looting and plundering was already forbidden by customary international law which did not make any exception with respect to restitution in kind. Also, bilateral treaties concluded after 1990 provide that art objects displaced after World War II should be returned to Germany. This is especially relevant for Russia according to the Treaty of 1992.
The existing regime lasted until 1954 when the Hague Convention of 14 May 1954 on the Protection of Cultural Property in the Event of Armed Conflict dealt especially with cultural property, which is defined in Art 1. The Hague Convention of 1954 seeks to safeguard cultural property against the foreseeable effects of an armed conflict by fixing a distinctive emblem to the objects and providing shelters for them. The First Protocol to the Convention obligates parties to not transport cultural objects abroad and, if they had been taken abroad for safekeeping, to return them. The Second Protocol of 26 March 1999 regulates the enhanced protection for cultural property of great importance for humanity, establishes criminal responsibility for crimes against cultural property and improves institutional cooperation. Despite these efforts, the Library of Sarajevo was destroyed in 1992, in Baghdad the National Museum was plundered in 2003 and Iraqi archaeological sites are until now the principal domain of grave robbers. Here, it is not foreign enemies at work, but members of the state of origin. In such cases, other instruments become necessary.
b) The first important Convention for the protection of cultural property in time of peace was the UNESCO Convention of 14 November 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Based on policies from the era of decolonization, the Convention obliges every state to ban the import and acquisition of stolen or illegally exported cultural property, defined in Art 1, and, if stolen or illegally exported, to return the objects to the state of origin (Art 7). There are very few countries that took the Convention seriously and implemented it in national statutes. As an exception, the United States did implement it as did Switzerland, Germany and the Netherlands. Austria is about to do the same. Although not directly applicable, the UNESCO Convention of 1970 changed art trade considerably. Art trade violating the spirit of the Convention has been determined to be ‘improper’ and ‘not deserving to be protected under civil law’ (BGH 22 June 1972, BGHZ 59, 82, 88). Nonetheless, the UNESCO Convention did not achieve the intended result of effectively protecting cultural property. Therefore, the Rome International Institute for the Unification of Private Law was asked by UNESCO to draft a Convention that directly prohibits the acquisition of stolen and illegally exported cultural objects. The outcome of this work is the UNIDROIT Convention of 24 June 1995 on Stolen or Illegally Exported Cultural Objects, which today (1 January 2011) is in force in 30 countries. These countries are not market states, but rather states of origin. The UNIDROIT Convention prohibits the acquisition of cultural objects that have been stolen from within a contracting state or illegally exported from a contracting state and requires that these objects be returned irrespective of a bona fide purchase. If there has been a bona fide purchase, the buyer has to be reasonably compensated by the state asking for return.
c) Cultural property under water creates special problems because it is doubtful which state is responsible for the protection of such treasures. Cultural objects are not only found in territorial waters but also in the exclusive economic zone, on the continental shelf and in the high seas beyond any territorial waters. Therefore, it has to be decided which state is responsible for cultural objects and how to initiate international cooperation. These questions are now regulated by the UNESCO Convention of 2 November 2001 on Underwater Cultural Heritage, which defines such ‘underwater cultural heritage’ in Art 1(1).
d) Based on the UNESCO Convention of 16 November 1972 Concerning the Protection of the World Cultural and Natural Heritage, certain monuments, places and natural sites located in member states are listed as being part of the world’s cultural and natural heritage and are to be preserved as such. In this regard, the Tower of London, Castel del Monte (Italy), the Statute of Liberty (United States, New York), the Pope’s Palace in Avignon (France) and Stonehenge (England) have been listed. The member states have to protect the objects, to support them and to make sure that they are preserved for future generations. In addition to that, the contracting states assume the obligation to heed these objects in their policies on building, housing, traffic, finance and research. Hence the World Heritage Convention exerts a considerable influence although it is not directly enforceable. This could be shown by the dispute concerning the site of the Dresden Valley, removed from the list of the World Cultural Heritage in 2009 as a result of the decision to build a four-lane bridge over it.
e) In recent years, intangible cultural heritage has received more attention. Therefore the UNESCO Convention of 17 October 2003 for the Safeguarding of the Intangible Cultural Heritage was signed and two years later the UNESCO Convention of 20 October 2005 on the Protection and Promotion of the Diversity of Cultural Expressions was added. Since then, certain performing arts and social practices of ethnic groups are also protected as well as the instruments with which these activities are exercised. Here, it is no longer movables that are protected but ethnic abilities.
f) The Council of Europe (Council of Europe (harmonization of private law) Council of Europe (institutional aspects)) has prepared several conventions, inter alia, on the protection of the archaeological heritage (1969, revised 1992), on the protection of the architectural heritage of Europe (1985), on offences relating to cultural property (1985) and on the value of cultural heritage for society (2005). These Conventions are not directly enforceable. Nonetheless, they exert a certain influence to the extent they serve as guidelines for offices of cultural affairs in the member states of the Council of Europe which, in turn, try to follow the policies of the conventions and achieve their goals.
g) Apart from formally drafted conventions or regulations by governments, as well as international or supranational organizations, there are many codes of conduct by professional organizations or institutions, eg the Code of Professional Ethics of the International Council of Museums in Paris. These sources are sometimes called soft law because, without being binding on the members of the profession, they exert a certain influence and give guidance to their behaviour. In the field of cultural property, the most important code is the Washington Conference Principles of 3 December 1998 on Nazi-Confiscated Art Objects, confirmed on 5 October 2000 in Vilnius/Lithuania and on 30 June 2009 in Terezin/Czech Republic. These Principles try to persuade the state to conduct provenance research and, if possible, to return art objects that were taken from Jewish citizens. Based on the Principles, the German Federal Government, the German states and the regional German communities prepared a Statement of December 1999 stating that Germany will try to find objects that have not already been returned and will make restitution. A Guideline of February 2001 (revised in November 2007) confirms this attitude.
6. Future of protection of cultural property
There are many national, supranational and international instruments for the protection of cultural property. Also, voluntary and informal cooperation of state authorities has grown and improved. Trade with art objects has developed its own rules and, nonetheless, is in some countries handled more liberally than before. Loans from abroad are protected against seizure and subject to return proceedings in the state giving this return guarantee. Nevertheless, the future of the protection of cultural property is not so promising. Wars and local conflicts threaten cultural monuments, museums and libraries. The financial crisis of states has the effect that state protection is diminishing and private persons have to care for these objects. Natural catastrophes and environmental problems cause considerable damage and the growing tourism trade endangers the cultural heritage of mankind. Finally, the enforcement of protection is not ideal. Lack of money and growing mobility as well as communication (trade in cultural objects via the internet) make any supervision and enforcement extremely difficult.
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