Appraising the Agreements Concluded between Italy and American Museums

Some slightly different remarks may be drawn from the agreements concluded between the Italian Government and American museums.

The first point concerns the instrument selected to achieve restitution and the other aims pursued. As it has been observed, such contractual agreements represent efficient out-of-court settlements under a dual point of view.

On the one hand, the agreements under consideration are substantially different from the typical instrument of international relations, i.e. the treaty. In other words, rather than negotiating an international treaty with the national State of the museums involved – the United States – the Italian Government privileged the conclusion of agreements of a contractual nature. This solution has the merit of, among others, reducing the diplomatic and political dimension of restitution claims.

On the other hand, it is to be observed that the conclusion of contractual agreements was necessary to overcome the refusal of the involved museums to return the claimed objects.

As such, the accords facilitated the broadening of the negotiations so as to include fea-tures that permitted the achievement of mutually satisfactory settlements. Moreover, this approach has favoured the enlargement of the subject matter of the agreements and the exclusion of the issue of responsibility. In effect, in order to obtain the restitution of the objects forming part of the negotiations, the Italian State waived its right of suing the museums before a civil or administrative jurisdiction claiming any kind of responsibility or liability. For this reason, the above agreements do not include expressions such as

“return” or “restitution”, but always employ a more neutral expression, such as “trans-fer”¹⁸. Therefore, the agreements concluded between the Italian Government and Ameri-can museums provide a model. As such, it not only contemplates the loan of artworks of importance or value equivalent to those “transferred”, but also the cooperation in the fields of research, restoration and conservation of cultural objects, exchanges of re-searchers, museum directors, students, and so forth.

It is to be added that the choice of such contractual agreements in order to settle disputes concerning the return or restitution of cultural objects have a double character that con-tributes to make them particularly suitable and interesting for both parties. Such

18 See the Agreement between the Italian Republic and the Metropolitan Museum (cit. n. 15): “The Museum, rejecting any accusation that it had knowledge of the alleged illegal provenance from the Italian territory of the assets claimed by Italy, has resolved to transfer the Requested Items in the con-text of this Agreement”.

ments give the public administrations involved the opportunity of asserting before the public opinion the success represented by the return of property of significant importance for the national cultural heritage, bearing in mind that such an outcome would not have been guaranteed by a judicial claim, the result of which is often highly uncertain. On the other hand, the concerned museum not only avoids the (potentially) negative effects of a judicial claim, but also obtains considerable results by eliminating every reasons of con-flict and by opening a long period of scientific collaboration, which is also characterized by the loans of artworks of importance equivalent to the “transferred” artworks. These represent mutually satisfactory benefits at the domestic and international level.

Moreover, the assurance of the respect of the ethical rules that are supposed to assist the purchase of cultural objects by museums is included in the above agreements. The ex-plicit condemnation of looting, plundering and of illicit archaeological excavations, carried out with no respect for any appropriate scientific methods, as well as of the dete-rioration of monuments and theft of artworks is, on the other hand, present in all the mentioned agreements. The respect of the ethical codes of the professionals involved, namely the ICOM Code of Ethics for Museums of 2004 and of the Code of Ethics of the American Association of Museums, is not expressly mentioned in the agreements¹⁹. Nevertheless, it is to be observed that rules and conducts such as those concerning the purchase and the transfer of collections²⁰, the origin of works and collections²¹ and the conducts of the professionals²², have in the abovementioned agreements an important and coherent application. This brings about a positive feeling that a real background facilitating the approaching between rules of law and rules of ethics is on the course of consolidation.

19 ICOM Code of Ethics for Museums (revised in 2004), available at: http://icom.museum/who-we-are/the-vision/code-of-ethics.html (28.02.2012); Code of Ethics for Museums of the American Asso-ciation of Museums (2000) available at: http://www.aam-us.org/museumresources/ethics/coe.cfm (28.02.2012).

20 See article 2.2 et 2.3 of the ICOM Code of Ethics for Museums (revised in 2004), as well as the Code of Ethics for Museums of the American Association of Museums (2000).

21 See articles 6.1, 6.2 and 6.3 of the ICOM Code of Ethics for Museums (revised in 2004), and article 4 of the Code of Ethics for Museums of the American Association of Museums (2000).

22 See articles 1.16 and 8 of the ICOM Code of Ethics for Museums (revised in 2004); concerning the importance of the codes of ethics in our domain see FRIGO MANLIO, Ethical Rules and Codes of Honor Related to Museum Activities: A Complementary Support to the Private International Law Approach Concerning the Circulation of Cultural Property, International Journal of Cultural Proper-ty, 2009, pp. 49 et seqq.

B. Appraising the Agreements Concluded between Italy and American Museums

Some slightly different remarks may be drawn from the agreements concluded between the Italian Government and American museums.

The first point concerns the instrument selected to achieve restitution and the other aims pursued. As it has been observed, such contractual agreements represent efficient out-of-court settlements under a dual point of view.

On the one hand, the agreements under consideration are substantially different from the typical instrument of international relations, i.e. the treaty. In other words, rather than negotiating an international treaty with the national State of the museums involved – the United States – the Italian Government privileged the conclusion of agreements of a contractual nature. This solution has the merit of, among others, reducing the diplomatic and political dimension of restitution claims.

On the other hand, it is to be observed that the conclusion of contractual agreements was necessary to overcome the refusal of the involved museums to return the claimed objects.

As such, the accords facilitated the broadening of the negotiations so as to include fea-tures that permitted the achievement of mutually satisfactory settlements. Moreover, this approach has favoured the enlargement of the subject matter of the agreements and the exclusion of the issue of responsibility. In effect, in order to obtain the restitution of the objects forming part of the negotiations, the Italian State waived its right of suing the museums before a civil or administrative jurisdiction claiming any kind of responsibility or liability. For this reason, the above agreements do not include expressions such as

“return” or “restitution”, but always employ a more neutral expression, such as “trans-fer”¹⁸. Therefore, the agreements concluded between the Italian Government and Ameri-can museums provide a model. As such, it not only contemplates the loan of artworks of importance or value equivalent to those “transferred”, but also the cooperation in the fields of research, restoration and conservation of cultural objects, exchanges of re-searchers, museum directors, students, and so forth.

It is to be added that the choice of such contractual agreements in order to settle disputes concerning the return or restitution of cultural objects have a double character that con-tributes to make them particularly suitable and interesting for both parties. Such

18 See the Agreement between the Italian Republic and the Metropolitan Museum (cit. n. 15): “The Museum, rejecting any accusation that it had knowledge of the alleged illegal provenance from the Italian territory of the assets claimed by Italy, has resolved to transfer the Requested Items in the con-text of this Agreement”.

ments give the public administrations involved the opportunity of asserting before the public opinion the success represented by the return of property of significant importance for the national cultural heritage, bearing in mind that such an outcome would not have been guaranteed by a judicial claim, the result of which is often highly uncertain. On the other hand, the concerned museum not only avoids the (potentially) negative effects of a judicial claim, but also obtains considerable results by eliminating every reasons of con-flict and by opening a long period of scientific collaboration, which is also characterized by the loans of artworks of importance equivalent to the “transferred” artworks. These represent mutually satisfactory benefits at the domestic and international level.

Moreover, the assurance of the respect of the ethical rules that are supposed to assist the purchase of cultural objects by museums is included in the above agreements. The ex-plicit condemnation of looting, plundering and of illicit archaeological excavations, carried out with no respect for any appropriate scientific methods, as well as of the dete-rioration of monuments and theft of artworks is, on the other hand, present in all the mentioned agreements. The respect of the ethical codes of the professionals involved, namely the ICOM Code of Ethics for Museums of 2004 and of the Code of Ethics of the American Association of Museums, is not expressly mentioned in the agreements¹⁹. Nevertheless, it is to be observed that rules and conducts such as those concerning the purchase and the transfer of collections²⁰, the origin of works and collections²¹ and the conducts of the professionals²², have in the abovementioned agreements an important and coherent application. This brings about a positive feeling that a real background facilitating the approaching between rules of law and rules of ethics is on the course of consolidation.

19 ICOM Code of Ethics for Museums (revised in 2004), available at: http://icom.museum/who-we-are/the-vision/code-of-ethics.html (28.02.2012); Code of Ethics for Museums of the American Asso-ciation of Museums (2000) available at: http://www.aam-us.org/museumresources/ethics/coe.cfm (28.02.2012).

20 See article 2.2 et 2.3 of the ICOM Code of Ethics for Museums (revised in 2004), as well as the Code of Ethics for Museums of the American Association of Museums (2000).

21 See articles 6.1, 6.2 and 6.3 of the ICOM Code of Ethics for Museums (revised in 2004), and article 4 of the Code of Ethics for Museums of the American Association of Museums (2000).

22 See articles 1.16 and 8 of the ICOM Code of Ethics for Museums (revised in 2004); concerning the importance of the codes of ethics in our domain see FRIGO MANLIO, Ethical Rules and Codes of Honor Related to Museum Activities: A Complementary Support to the Private International Law Approach Concerning the Circulation of Cultural Property, International Journal of Cultural Proper-ty, 2009, pp. 49 et seqq.

V. The Development of an International Network for the Prevention and the Settlement of Cultural Property Disputes

At first sight, it may seem that the cases of restitution described above did not involve international institutions. At closer examination, however, it simply is not true. If we look at the long process concerning the signature and the complex organization of the operative aspects of the return to Ethiopia of the Obelisk of Axum, it results that UNESCO played a fundamental role. This is particularly true so far as the administrative, technical and scientific aspects of the operation are concerned²³. This shows that interna-tional cooperation in the field of cultural heritage requires more than the elaboration of legal rules by international organizations, such as UNESCO, UNIDROIT and the Coun-cil of Europe.

If we take into consideration both the 1970 UNESCO Convention and the European Union (EU) rules concerning the export of cultural property²⁴ and the return of cultural objects unlawfully removed from the territory of a Member State²⁵, it appears that the cooperation at an administrative, technical and scientific level, both at an universal and at a regional level, is essential. In effect, the above international acts contain duties on the exchange of information and on technical assistance²⁶. Nevertheless, the periodical re-ports of the EU Commission revealed that the administrative cooperation between na-tional and EU authorities needed improvement because it had not taken any practical shape²⁷.

This is further demonstrated by the text of article 5 of the 1970 UNESCO Convention and its undertaking by the States Parties to set up “one or more national services” for the protection of cultural heritage, and to establish and keep up to date, “on the basis of a

23 See supra section II.

24 See EC Regulation No. 116/2009 of 18 December 2008 on the Export of cultural property, EU Official Journal, n° L 039, 10 February 2009, article 6, pp. 1 et seqq.

25 See EC Directive No. 93/7 of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State, EU Official Journal, n° L 074, 27 March 1993, articles 4 and 6, p. 74.

26 See particularly, article 17 of the 1970 UNESCO Convention (cit. n. 5).

27 See Second Report from the Commission to the Council, the European Parliament and the European Economic and Social Committee of 21 December 2005 on the application of Council Directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State (COM/2005/675/final).

national inventory of protected property, a list of protected property whose export would constitute an appreciable impoverishment of the national cultural heritage”.

The following is another obvious example of cooperation. In 2010, the British Library returned to the Italian city of Benevento a missal (a liturgical book) of the 12^th century that had been stolen during World War II. The restitution, which was recommended by the British Spoliation Advisory Panel, represents the first case of restitution that occurred after the entry into force of the Holocaust (Return of Cultural Objects) Act of 2009 in England²⁸. It is to be observed that in this case the restitution resulted from the imple-mentation of domestic legislation. However, it must also be stressed that such a law was enacted pursuant to an international set of non-binding rules, known as the “Washington Principles”, which were adopted by the 44 governments who participated in the Confer-ence on Holocaust-Era Assets that was held in Washington, D.C., on 3 December 1998²⁹. These examples demonstrate on the one hand, that the participants in the cultural herit-age world are increasingly involved in an international network and, on the other hand, that UNESCO seeks to play the role of coordinator in this domain. In this sense, this organization should be praised for the creation of the cultural heritage laws database, which is an irreplaceable tool for those engaged in the fight against the illicit trafficking in cultural property. Moreover, if we look at the experience of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation since its establishment in 1978, we can see a clear example of the will of UNESCO to assume a role of leadership and coordination of the international activities in the field. Not only does the UNESCO Committee represent a specialised forum for the non-adversarial settlement of disputes concerning the return of cultural property, but it also plays a role of increasing importance as the legal and technical advisor for UNESCO Member States. In the first sense, it is to be observed that the Rules of Procedure for Mediation and Conciliation pursuant to article 4.1 of the Statutes of the Committee have just recently been approved³⁰. In the second sense, it is noteworthy that the Committee has recently decided to create an international committee of experts in order to discuss the preparation of model rules defining State ownership of

28 See BAILEY MARTIN, Benevento Missal Returns Home, The Art Newspaper, 24 November 2010, available at: http://www.theartnewspaper.com/articles/Benevento%2BMissal%2Breturns%2Bhome/

21936 (28.02.2012).

29 See the Washington Conference Principles on Nazi-Confiscated Art, 3 December 1998, available at:

www.lootedartcommission.com/Washington-principles (07.02.2012).

30 See Rules of Procedure for Mediation and Conciliation in accordance with article 4.1, of the Statutes of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation, February 2011, UNESDOC CLT-2011/CONF.208/COM.17/1.

V. The Development of an International Network for the Prevention and the Settlement of Cultural Property Disputes

At first sight, it may seem that the cases of restitution described above did not involve international institutions. At closer examination, however, it simply is not true. If we look at the long process concerning the signature and the complex organization of the operative aspects of the return to Ethiopia of the Obelisk of Axum, it results that UNESCO played a fundamental role. This is particularly true so far as the administrative, technical and scientific aspects of the operation are concerned²³. This shows that interna-tional cooperation in the field of cultural heritage requires more than the elaboration of legal rules by international organizations, such as UNESCO, UNIDROIT and the Coun-cil of Europe.

If we take into consideration both the 1970 UNESCO Convention and the European Union (EU) rules concerning the export of cultural property²⁴ and the return of cultural objects unlawfully removed from the territory of a Member State²⁵, it appears that the cooperation at an administrative, technical and scientific level, both at an universal and at a regional level, is essential. In effect, the above international acts contain duties on the exchange of information and on technical assistance²⁶. Nevertheless, the periodical re-ports of the EU Commission revealed that the administrative cooperation between na-tional and EU authorities needed improvement because it had not taken any practical shape²⁷.

This is further demonstrated by the text of article 5 of the 1970 UNESCO Convention and its undertaking by the States Parties to set up “one or more national services” for the protection of cultural heritage, and to establish and keep up to date, “on the basis of a

23 See supra section II.

24 See EC Regulation No. 116/2009 of 18 December 2008 on the Export of cultural property, EU Official Journal, n° L 039, 10 February 2009, article 6, pp. 1 et seqq.

25 See EC Directive No. 93/7 of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State, EU Official Journal, n° L 074, 27 March 1993, articles 4 and 6, p. 74.

26 See particularly, article 17 of the 1970 UNESCO Convention (cit. n. 5).

27 See Second Report from the Commission to the Council, the European Parliament and the European Economic and Social Committee of 21 December 2005 on the application of Council Directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State (COM/2005/675/final).

national inventory of protected property, a list of protected property whose export would constitute an appreciable impoverishment of the national cultural heritage”.

The following is another obvious example of cooperation. In 2010, the British Library returned to the Italian city of Benevento a missal (a liturgical book) of the 12^th century that had been stolen during World War II. The restitution, which was recommended by

The following is another obvious example of cooperation. In 2010, the British Library returned to the Italian city of Benevento a missal (a liturgical book) of the 12^th century that had been stolen during World War II. The restitution, which was recommended by