Since 19th century smuggling of cultural property has been one of the most profitable businesses in the world, in the 1980’s coming in 2nd after trafficking of narcotics. Even though nowadays this tendency has reduced, the illicit removal of cultural property from its state of origin annually reaches losses estimated at about 10 billion USD. At the moment protection of cultural property and prohibition of illicit removal of it has become popular to the United Nations Security Council’s (UNSC) resolution of March 24th, 2017, which highlighted the international society’s condemn in regards to ISIS activities in the Middle East when destroying different cultural monuments and stealing cultural objects to finance their terroristic actions. Moreover, the subject is actual considering the International Criminal Court’s (ICC) decision on August 17th, 2017 ordering former Mali Islamist to pay 2,7 million EUR for the damage done to Timbuktu cultural sites. The article is based on author’s bachelor’s thesis “Repatriation of cultural property to its state of origin as international customary law” aiming to identify whether exists a customary rule, which would order states not bound by conventional norms to repatriate cultural objects to their state of origin and proprietor.
Definition of cultural object
As the Russian Golden age novelist Leo Tolstoy put it in 1869: “This history of culture will explain to us the motives, the conditions of life, and the thought of the writer or reformer.” The quote also reflects the currently existing belief that in order to understand the development of humanity and evaluation of society’s values in different times we must explore their culture and history, as well as to ensure that right to access and enjoy culture embodied in the International Covenant on Economic, Social and Cultural rights (ICESCR) Art.15 is possible.
On global and European Union (EU) scale the transportation of cultural objects is regulated by several normative acts, e.g., the European Parliament and Council directive No 2014/60/EU of May 15th, 2014 on the return of cultural objects removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 (Recast), Hague 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, as well as UNIDROIT 1995 Convention on Stolen or Illegally Exported Cultural Objectsetc.
Since it is not an ordinary object, in the last two centuries there have been a lot of attempts to define what exactly is cultural object. Starting with Lieber Code in 1863 and Washington or Roerich’s Pact in 1935 to UNIDROIT 1995 convention. As all the previously mentioned acts cover the protection and return of cultural objects to their state of origin, the definition what is cultural object should be alike in all of them to effectively safeguard and preserve these treasures. Unfortunately, up to day it is not consistent because it is very difficult to combine and unite different suggestions and opinions of sovereigns with different values, views and historic development to come to a definite conclusion and a complete definition. Nonetheless, after analysing the mentioned normative acts, the author of this paper wishes to offer a cultural object definition, which would cover the directive and the conventions:
Cultural object is such an object, which regardless of secular or religious views and material or value is a part of history, development or pre-history of the state or its society. Cultural objects are objects connected to national heroes, leaders as well as archaeological excavations, specific examples of flora and fauna. Objects connected to arts or rituals, whether in collections or taken separately and which the state has identified as such.
I must emphasize that the definition of cultural object must be divided from the definition of cultural heritage, which includes not only cultural objects, but also immovable cultural heritage – places, landscapes, buildings, for example, the Historic centre of Riga – and intangible cultural heritage – rituals, songs and other.
Cultural property nationalism and internationalism doctrines
Here we should take separately two cultural property doctrines, which exist in the international society and collide with each other – cultural nationalism and cultural internationalism or cosmopolitism, which in their essence have formed from the principle of state sovereignty and human rights to culture.
Cultural nationalism is embodied in the UNESCO 1970 convention and the following UNIDROIT 1995 convention. It states that all cultural objects are the property of the state, in which it was created and where it has formed. With that, cultural nationalism doctrine not only gives rights to the state to exercise absolute control over these objects, but also obliges them to pass a national legislation for the protection and prohibition of exportation and expropriation of explicitly indicated cultural objects they consider their property, thus also making a statement to the international community. On the other hand, cultural internationalism doctrine, which derives also from Hague 1954 convention, states that cultural objects are a part of the cultural heritage of all mankind and all the peoples of the world, therefore they must be freely accessible, and their movement (transportation and exhibition) should and must be encouraged, since that is the only way to protect the human rights to access culture.
The author suggests that currently within the international community the cultural property nationalism doctrine prevails. Whilst still taking into account the principles incorporated in the international humanitarian law. It is so not only because it is more widespread than internationalism doctrine, but also because the main actors in international law are sovereigns, which also control the development and application of it. Moreover, a sovereign would never free-willingly allow the possibility that its property is exported from the state without a permit, since it is an interference in its property rights, thus, sovereignty. Accordingly, a state is the owner of a cultural property and only the state can determine when, if and why a cultural object can be exported from its territory. At the same time nationalism doctrine allows the interaction with internationalism doctrine when the proprietor state cannot realize effective and appropriate protection of its cultural objects. On such occasions, another state has the right to assist and help or offer to safeguard the cultural treasure until the situation in the state of origin improves. This option is associated with principle of co-operation, which is included in all the previously mentioned conventions; Then states sign bilateral agreements or indicate the reason of exportation in the permits.
In order for an internationally binding customary law to be defined there must be proof of two elements – a wide, uniform and lasting practice of states and opinio juris sive necessitatis (the subjective opinion of a state that the action it has taken has been carried out only because it is considered legally binding). To prove a uniform, widespread practice of states, one must not only look through the actual examples of physically taken actions of states, but also actions made on behalf of the state, national legislations, expressions by state representatives and their position in regards to different questions. By the same token, to determine the subjective opinion of states and international community as whole, one can examine decisions of national and international courts and tribunals, the number of party states to previously mentioned conventions, expressions by state representatives and voting records in the making of United Nation General Assembly’s (UNGA) and UNSC resolutions, uniformed actions by the governments and other sources.
Practice of states
Taking into account the fact that cultural property law is a relatively narrow and fresh branch of law,  one must look up the practice of the affected states, thus, market and source states. For this, states, in which cultural objects have formed or made as source states and states, in which the cultural objects are often found and/or sold after illicit exportations from source states – as market states. It is so due to the economic and historic situation. Market states basically are the ones, which have relatively stable economy and development levels, such as the US, the UK, France, Switzerland, where people have better financial resources to buy illicitly exported cultural objects. By historic situations author means the development of culture, for example Middle East, Mediterranean region and other territories were inhabited by ancient societies, therefore states within these territories are considered source states because of their rich and abundant cultural heritage.
It should be acknowledged, that there are a lot less examples when a cultural object would be repatriated from one source state to another, but still they exist. For example, in 1983 with the help of UNESCO Intergovernmental committee 12’000 cultural objects were repatriated from Italy to Ecuador, in 2007 after a bilateral agreement between Italy and Pakistan roughly a hundred cultural objects, dating from 3300 BC were repatriated to Pakistan, in 2008 Greece repatriated two statues of Artemis and Apollo to Albania, which were stolen in 1997, Italy repatriated the statue of Venus to Libya, Syria returned more than 700 cultural objects to Iraq, which were found there after the war of Iraq. In 2009 Greece repatriated several 13th century murals to Italy, after the conclusion of a bilateral agreement Thailand repatriated seven cultural objects to Cambodia. Here it is important to remind of the decision of Temple of Preah Vihear made by the International Court of Justice (ICJ) in 1962. In the following years several cultural objects were repatriated from Spain to Nicaragua, 31 icon, which were stolen during the Croatian independence war, was repatriated from Serbia to Croatia, etc.
If the practice of source states is relatively little, repatriation examples from market states are more frequent and voluminous. However, understanding the nature of this article, author will provide only the most important and recent examples of repatriations from market states to source states. According to the information provided by the UNESCO official page, the latest repatriation took place in 2017, when a 250’000 USD worth Etruscan vessel was returned to Italy by the United States, but the US have also repatriated cultural objects to Jordan, Peru, Egypt, several times to Turkey and Italy, according to the concluded bilateral agreement. Germany has repatriated objects to Bulgaria, Turkey, Cyprus. France to Burkina Faso, Egypt, a few times to Nigeria. Denmark to China, Switzerland to Tanzania, the Netherlands to France, the United Kingdom to Egypt. The mentioned are just a few examples, but there are many others market state repatriating objects to their source state.
Opinio juris sive necessitatis
As previously mentioned, when looking at the subjective reception of a sovereign or international community as whole, one must examine the parties of conventions, which regulate the question of cultural property repatriation, UNGA and UNSC resolutions, decisions of courts as well as national legislations.
The obligation to protect cultural property and heritage in armed conflict embodied in the Hague 1954 convention is considered international customary law; and the convention has 128 party states. It gives a reason to consider that UNESCO 1970 convention and its obligation to repatriate cultural object to its state of origin with 131 party state could have reached the level of international customary law.
Since 1972 the UNGA has accepted 26 resolutions in connection with cultural property repatriation to its state of origin. As time went by these resolutions, which at first consisted of abstract pleas and suggestions for states to think about ideas of cultural property repatriation and return, with time these resolutions became stricter and more demanding. Resolutions suggested the control of archaeologists and archaeological sites, private and public collections, which could include pieces of art belonging to another state, as well as requested states to collaborate with the UNESCO Intergovernmental committee. Of course, the more requests became significant, the less market states, that might or did have such objects, wanted to support them. But one is clear, UNGA has consistently and systematically supported the repatriation of cultural property to its state of origin, and it can be deduced from the continuous wish to bring this subject up as well as accepting most of the resolutions regarding this question without a vote. It should also be noted that not only UNGA, but UNSC also has stated that cultural objects must be repatriated to their state of origin.
As author has previously stated, UNESCO 1970 convention is not self-executive, thus, it needs a national legislation for it to be effectively applied, but it is not an obligation or prerequisite. A state can become party to a convention, thus, expressing its consent and support to the aims of it. At the same time national legislations, which include obligation of restitution and repatriation of cultural property, as well as import and export controls, guidelines for museums can be considered the subjective opinion or opinio juris of the state that repatriation of cultural objects to their states of origin is legally binding even if it has not become a party state to a respective convention.
Over the world market states and source states have passed national laws in order to protect cultural objects, that are the either theirs or the property of another state. Starting with Thailand and China  to the US, Greece, Canada and others. Even though the UNESCO convention requires a national legislation to implement it, it is not obligatory and absolute, such actions of these states (by passing laws) provides information about their subjective opinion of cultural objects and repatriation of them.
Since it represents the state itself, one of the main proof of the state’s opinio juris, that one or another legally binding obligation exists can be taken from its national court decisions. Due to the fact that illicitly removed, exported and stolen cultural objects frequently end up in market states, they are the main actors to determine the movement of repatriation, thus, the author looked up some of the many national court decisions that either support the repatriation movement or on the contrary – where the repatriation was declined and the main reasons why it was done.
One of the most popular examples is the case Government of Austria v. Altmann. Even though in the US courts this case is important for another reason, it is about how six Gustav Klimt paintings were stolen from a Jewish family during WW II, and how an heir of the family wanted to recover these paintings from Austrian National Gallery. After the ruling by the Supreme Court of the United States in favour of Mrs. Altman (the heir), she gained the opportunity and ability to continue proceedings in national courts of Austria, and in the end all six paintings were returned to her.
Another widely-known example in regard to repatriation of cultural objects is the Greek Elgin Marbles, which were exported from Ottoman Empire to the United Kingdom at the beginning of 19th century. Up to day they still are located in the British Museum despite the fact that Greece has repeatedly asked the UK to repatriate them.  The UK has declined such requests arguing that they were imported in the 19th century, respectively, before there was any national or international regulation which would protect them from such a removal and provide an obligation to repatriate them.
Other examples of repatriation and return include cases as Menzel v. List, Malewicz v. City of Amsterdam, DeWeerth v. Baldinger, Kunstsammlungen uz Weimar v. Elicofon etc. On the other hand there are also some examples when the repatriation was refused, for example, Iran v. Berend, when the reason was conflict of laws, or Government of Peru v. Johnson, when the main argument was that Peru had not effectively enough proved property rights over the cultural objects. Nevertheless, author must mention that due to complexity such claims are rarely out through courts, it is more common that such disputes are dealt with agreements, mediation, with the help of UNESCO Intergovernmental committee as in the case between France and China. Moreover, one of the main reasons to deny repatriation come from procedural matters.
Opponents of the repatriation
To consider who are the opponents of repatriation and what are their reasons, one must understand two things – again, it is a battle between cultural nationalism and internationalism doctrines; and the unwillingness of former colonial powers to return cultural objects to newly-established states, which until then had existed only as a part of society with their own history and culture, but had been robbed just because their territories were governed and ruled by other states (nowadays many of them are considered market states).
Such a resistance from states is rather connected with the cultural objects obtained in colonial times and wars before the Hague 1954 convention, not recent times – 20th century 80’s and 21st century. One may deduce it from party states to conventions, UN resolutions, the quantity and essence of national legislations, but also from the time these mechanisms of cultural object and heritage protection and movement began. It is likely that international organizations and scholars wanted these objects to be repatriated to the states, which had been oppressed or free-willingly under another state’s governance. It is so because of the decolonization process which took place almost simultaneously with acceptance of the Hague 1954 and UNESCO 1970 conventions, however action of states voting reluctantly when resolutions contained retroactivity proves that they rather support elimination of such events in the future not correcting the mistakes made in the past. That is, states do not wish to repatriate cultural objects which have been in their possession for decades and even centuries, but support the idea that illicit removal etc. of them should not be promoted and must be prohibited in the future.
Since the aim of this article was to find out whether an international customary rule to repatriate cultural objects which have illicitly removed from their state of origin back to their source state exists, it can be concluded that such a legally binding obligation may be emerged since 1972. However, if a further and greater study was made, one might come to a conclusion that such a custom has existed since 1954 or even 1945. At the same time, the biggest opponents of this custom reaching colonial times would be former colonial powers.
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Bac.iur. Elīna Luīze Vītola
The article was originally published in Jurista Vārds, 1st August 2017, No. 32 (986), pp.33-37, available at: http://www.juristavards.lv/doc/271114-kulturas-prieksmetu-repatriacija-uz-izcelsmes-valsti-ka-starptautisko-tiesibu-paraza/
Translated specially for Artlaw.online