T ROUVER DES SOLUTIONS : MÉTHODES ET ANALYSES
II. Domestic Courts and Cultural Heritage Disputes
7 SIEHR KURT, The Protection of Cultural Heritage and International Commerce, International Journal of Cultural Property, 1997, pp. 304 et seqq.
8 The most relevant treaties are: the Convention for the Protection of Cultural Property in the Event of Armed Conflict (14 May 1954, 249 UNTS 215), the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property (17 November 1970, 823 UNTS 231 – hereinafter 1970 UNESCO Convention), and the UNIDROIT Convention on Stolen or Illegally Exported of Cultural Objects (24 June 1995, 1995, ILM, pp. 1322 et seqq – hereinafter UNIDROIT Convention).
9 KAYE M.LAWRENCE, Disputes Relating to the Ownership and Status of Cultural Property, in: B YR-NE-SUTTON QUENTIN/GEISINGER-MARIÉTHOZ FABIENNE (eds.) (cit. n. 6), p. 46.
This paper examines the role of domestic litigation10 in resolving restitution cases and brings to light two intertwined trends that could be seen as remedies to the inherent weaknesses of this dispute settlement mode. The paper begins by discussing the strengths and limits of litigation (section II). It then proceeds to analyse the available case law in order to appraise critically the first trend: the process of cross-fertilization (section III).
This can be defined as the practice with which domestic judges – whether or not belong-ing to the same legal system – refer to and borrow decisions from each other in order to better cope with the specific problems posed by the disputes pending before them11. This section questions whether cross-fertilization is compatible with the role of judges and whether it can meaningfully enhance the effectiveness of litigation in the field of cultural heritage. Next, this paper examines a second jurisprudential trend that is discernible from the courts’ reasoning (section IV). It is submitted that this culture-sensitive trend is de-veloping as a result of the consolidation of an international public policy based on the need to warrant restitution of wrongfully removed art objects. The paper concludes by arguing that these “endogenous” trends can result in shaping an effective and coherent framework for the sound resolution of restitution cases (section V).
II. Domestic Courts and Cultural Heritage Disputes
The initiation of legal proceedings before domestic courts is the main avenue for the settlement of transnational cases. When contracts are not performed, or wrongs are committed, or in any other case where rights or interests are interfered with or infringed, the aggrieved party can go to court. However, it is an indisputable fact that litigation is a matter of last resort. States, as much as individuals, go before courts when extra-judicial methods have failed or are not available. The possible worsening of relations, the uncer-tainty of the outcome and the eventual embarrassment of an adverse ruling are
10 The focus is limited to litigation before domestic courts because of the paucity of international deci-sions. For instance, the International Court of Justice (ICJ) has dealt with restitution claims only twice in the cases Temple of Preah Vihear (Cambodia v Thailand, Judgment of 15 June 1962, ICJ Reports, 1962, p. 6), where the issue of restitution of cultural assets was incidental to that of the de-limitation of national boundaries, and Certain Property (Liechtenstein v Germany) (Preliminary Ob-jections, Judgment of 10 February 2005, ICJ Reports, 2005, p. 6), which was not discussed on the merits because the applicant’s claim was rejected on the grounds of lack of jurisdiction ratione tem-poris.
11 The practice of cross-fertilization has also been labelled as “judicial dialogue”, “judicial comity”,
“judicial cooperation”, “trans-judicialism”, or “trans-judicial communication”.
tainted title of stolen objects7. The third feature is that the resolution of cultural heritage disputes is affected by the drawbacks of the existing normative framework. At least since the end of the Second World War, the international community has acted towards the building of a comprehensive regime for safeguarding the world cultural heritage. Yet, this legal regime has proven to be imperfect in many respects. The treaties adopted under the aegis of the United Nations Educational, Scientific, and Cultural Organization (UNESCO)8 do not regulate the issue of the applicable law or the reach of domestic laws with respect to good faith assessment and limitation periods. In addition, national and international instruments have proved to be structurally weak due to vague and ineffec-tive clauses. Furthermore, domestic laws and international treaties are not retroacineffec-tive.
However, the major pitfall of the international law concerning cultural heritage is repre-sented by the lack of a dedicated system for resolving disputes. None of the existing treaties sets up a special forum or adequate systems of control to ensure the consistent application of their norms. As a result, controversies are to be settled through political or diplomatic negotiation or, if these fail or are not available, through existing dispute set-tlement mechanisms, which include mediation, conciliation, arbitration and litigation before domestic courts or international tribunals.
This ad hoc fashion of dealing with cultural heritage disputes is not without consequenc-es. The main problem is that the final settlement mostly depends on the selected dispute settlement method and on the applicable law. With respect to litigation before domestic courts, this means that, as the substantive law of one jurisdiction may be more favourable to one party than to the other, the party that benefits may well opt to have the dispute decided by the court that is bound by the favourable law9. This entails the risk that na-tional and internana-tional courts, in the absence of formal links, may produce different solutions for the same legal problems and hence may bring about harmful precedents, incoherent and fragmentary development of the law and divergences of interpretation.
7 SIEHR KURT, The Protection of Cultural Heritage and International Commerce, International Journal of Cultural Property, 1997, pp. 304 et seqq.
8 The most relevant treaties are: the Convention for the Protection of Cultural Property in the Event of Armed Conflict (14 May 1954, 249 UNTS 215), the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property (17 November 1970, 823 UNTS 231 – hereinafter 1970 UNESCO Convention), and the UNIDROIT Convention on Stolen or Illegally Exported of Cultural Objects (24 June 1995, 1995, ILM, pp. 1322 et seqq – hereinafter UNIDROIT Convention).
9 KAYE M.LAWRENCE, Disputes Relating to the Ownership and Status of Cultural Property, in: B YR-NE-SUTTON QUENTIN/GEISINGER-MARIÉTHOZ FABIENNE (eds.) (cit. n. 6), p. 46.
This paper examines the role of domestic litigation10 in resolving restitution cases and brings to light two intertwined trends that could be seen as remedies to the inherent weaknesses of this dispute settlement mode. The paper begins by discussing the strengths and limits of litigation (section II). It then proceeds to analyse the available case law in order to appraise critically the first trend: the process of cross-fertilization (section III).
This can be defined as the practice with which domestic judges – whether or not belong-ing to the same legal system – refer to and borrow decisions from each other in order to better cope with the specific problems posed by the disputes pending before them11. This section questions whether cross-fertilization is compatible with the role of judges and whether it can meaningfully enhance the effectiveness of litigation in the field of cultural heritage. Next, this paper examines a second jurisprudential trend that is discernible from the courts’ reasoning (section IV). It is submitted that this culture-sensitive trend is de-veloping as a result of the consolidation of an international public policy based on the need to warrant restitution of wrongfully removed art objects. The paper concludes by arguing that these “endogenous” trends can result in shaping an effective and coherent framework for the sound resolution of restitution cases (section V).
II. Domestic Courts and Cultural Heritage Disputes
The initiation of legal proceedings before domestic courts is the main avenue for the settlement of transnational cases. When contracts are not performed, or wrongs are committed, or in any other case where rights or interests are interfered with or infringed, the aggrieved party can go to court. However, it is an indisputable fact that litigation is a matter of last resort. States, as much as individuals, go before courts when extra-judicial methods have failed or are not available. The possible worsening of relations, the uncer-tainty of the outcome and the eventual embarrassment of an adverse ruling are
10 The focus is limited to litigation before domestic courts because of the paucity of international deci-sions. For instance, the International Court of Justice (ICJ) has dealt with restitution claims only twice in the cases Temple of Preah Vihear (Cambodia v Thailand, Judgment of 15 June 1962, ICJ Reports, 1962, p. 6), where the issue of restitution of cultural assets was incidental to that of the de-limitation of national boundaries, and Certain Property (Liechtenstein v Germany) (Preliminary Ob-jections, Judgment of 10 February 2005, ICJ Reports, 2005, p. 6), which was not discussed on the merits because the applicant’s claim was rejected on the grounds of lack of jurisdiction ratione tem-poris.
11 The practice of cross-fertilization has also been labelled as “judicial dialogue”, “judicial comity”,
“judicial cooperation”, “trans-judicialism”, or “trans-judicial communication”.
tions that may deter potential litigants from filing a case in domestic fora. But litigation presents further flaws that can dissuade from bringing an action.
A. The Judicial Route: Its Limits...
Access to the court system is the first problem. Although several constitutions guarantee the right to bring an action for the protection of individual rights and legitimate interests, legal action is not always available. For instance, courts may dismiss restitution claims on grounds of lack of jurisdiction. In addition, lawsuits may be barred by the expiry of limitation periods12. The second barrier to litigation is represented by the burden of prov-ing title. The claimant must show that he has a superior right of possession to the object in order to prevail over the alleged good faith possessor. This evidentiary burden could be a huge deterrent for many people – especially non-professional owners – with other-wise valid claims. Likeother-wise, States that seek the recovery of antiquities excavated clan-destinely from unofficial archaeological sites bear the burden of proving that, at the time of the discovery, national law vested ownership in the State. In the case of Holocaust-related disputes, the problem of proving ownership is even more acute. Since more than half a century has passed since the Second World War, evidence is now lost or extremely difficult to collect: many Nazi victims have passed away, while those who are still alive or their descendants may have no documentation. Third, the enforcement of judgments is a major drawback: after the issuance of the final decision, the winning party may have to proceed to have the judgment recognized and enforced in a foreign jurisdiction. For this reason States and non-State entities alike normally seek redress in the courts of the coun-try where the requested object is located (in rem jurisdiction) because it has the most control over the disposition of the chattel. Fourth, resort to litigation entails considerable economic and human expenses. Litigants may not only suffer the loss of time, but also the burden of paying the legal costs for lengthy proceedings as a consequence of the intricate issues of fact and law involved in transnational cases13. Fifth, stakeholders tend
12 All legal systems subject the starting of proceedings to certain time limits which may start from the time of the theft, from the discovery of the location of the object or of the identity of the holder. See REDMOND-COOPER RUTH, Limitation of Actions in Art and Antiquity Claims, Art Antiquity and Law, 2000, pp. 185 et seqq.
13 PALMER NORMAN, Statutory, Forensic and Ethical Initiatives in the Recovery of Stolen Art and Antiquities, in: PALMER NORMAN (ed.), The Recovery of Stolen Art, London 1998, pp. 1 et seqq. Le-gal costs can easily exceed the value of the contested artwork. For example, the Metropolitan Muse-um of Art of New York paid $1,7 million for the Lydian Hoard, but it spent at least twice as much as this to litigate the case. BESSIÈRES MICHEL, We Have To Change the Buyer’s Attitude, UNESCO Courier, 1 April 2001, p. 36 et seqq.
to avoid lawsuits because of the fear that judges may be mechanistic in their attention to procedural rules and not capable of taking into account the interests and the factors that normally characterize restitution cases. Available practice not only shows that judges awkwardly mistake outstanding art treasures to ordinary chattels14, but also evidences that they have an insufficient understanding of market practices and of the causes and consequences of illicit trafficking. Such disparate reasoning and lack of experience, understanding and wisdom – which can be referred to as “fragmentation of knowledge” – is a serious concern.
In light of the foregoing survey, it should not be surprising that the majority of disputes concerning art objects arose in the past three decades have been settled out-of-court15. Indeed, the above shortcomings strengthen the appeal of alternative dispute resolution (ADR) methods – which include negotiation, mediation, conciliation and arbitration.
This means provide the necessary flexibility for handling cultural heritage disputes and facilitating consensual, mutually satisfactory settlements16. For these reasons the use of ADR techniques is advocated by international instruments17 and the nonbinding state-ments adopted to guide the resolution of Holocaust-related claims18.
Nevertheless, the use of ADR methods is not widespread. This is due to the fact that such methods are characterized by some important shortcomings. For the limited purposes of this paper it is not necessary to embark in an in-depth examination of available ADR methods and of the corresponding problems. Instead, it is worth mentioning the most significant handicap, namely the voluntary essence of ADR mechanisms. Indeed, outside
14 PATERSON K.ROBERT, Resolving Material Culture Disputes: Human Rights, Property Rights, and Crimes against Humanity, in: NAFZIGER A.R.JAMES/NICGORSKI M.ANN (eds.), Cultural Heritage Issues: The Legacy of Conquest, Colonization, and Commerce, Leiden 2009, p. 379.
15 BORODKIN J.LISA, The Economics of Antiquities Looting and a Proposed Legal Alternative, Colum-bia Law Review, 1995, p. 403; and COGGINS CLEMENCY CHASE, A Licit International Traffic in An-cient Art: Let There Be Light!, International Journal of Cultural Property, 1995, pp. 61 et seqq, p. 75.
According to BAZYLER,only ten Holocaust-related suits were filed in United States courts in the pe-riod 1945–1995, whereas less than a handful of lawsuits concerning art looted during the Second World War have been brought since 1945:BAZYLER J. MICHAEL, Nuremberg in America: Litigating the Holocaust in United States Courts, University of Richmond Law Review, 2000, p. 165.
16 PALMER NORMAN, Museums and the Holocaust: Law Principles and Practice, Institute of Art and Law, London 2000, p. 107.
17 See article 8 of the UNIDROIT Convention (cit. n. 8) and article 4.3 of the Statutes of the UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation.
18 See, e.g., the 1998 Washington Principles on Nazi-Confiscated Art, available at:
http://www.lootedart.com/MG7QA043892 (02.03.2012).
tions that may deter potential litigants from filing a case in domestic fora. But litigation presents further flaws that can dissuade from bringing an action.
A. The Judicial Route: Its Limits...
Access to the court system is the first problem. Although several constitutions guarantee the right to bring an action for the protection of individual rights and legitimate interests, legal action is not always available. For instance, courts may dismiss restitution claims on grounds of lack of jurisdiction. In addition, lawsuits may be barred by the expiry of limitation periods12. The second barrier to litigation is represented by the burden of prov-ing title. The claimant must show that he has a superior right of possession to the object in order to prevail over the alleged good faith possessor. This evidentiary burden could be a huge deterrent for many people – especially non-professional owners – with other-wise valid claims. Likeother-wise, States that seek the recovery of antiquities excavated clan-destinely from unofficial archaeological sites bear the burden of proving that, at the time of the discovery, national law vested ownership in the State. In the case of Holocaust-related disputes, the problem of proving ownership is even more acute. Since more than half a century has passed since the Second World War, evidence is now lost or extremely difficult to collect: many Nazi victims have passed away, while those who are still alive or their descendants may have no documentation. Third, the enforcement of judgments is a major drawback: after the issuance of the final decision, the winning party may have to proceed to have the judgment recognized and enforced in a foreign jurisdiction. For this reason States and non-State entities alike normally seek redress in the courts of the coun-try where the requested object is located (in rem jurisdiction) because it has the most control over the disposition of the chattel. Fourth, resort to litigation entails considerable economic and human expenses. Litigants may not only suffer the loss of time, but also the burden of paying the legal costs for lengthy proceedings as a consequence of the intricate issues of fact and law involved in transnational cases13. Fifth, stakeholders tend
12 All legal systems subject the starting of proceedings to certain time limits which may start from the time of the theft, from the discovery of the location of the object or of the identity of the holder. See REDMOND-COOPER RUTH, Limitation of Actions in Art and Antiquity Claims, Art Antiquity and Law, 2000, pp. 185 et seqq.
13 PALMER NORMAN, Statutory, Forensic and Ethical Initiatives in the Recovery of Stolen Art and Antiquities, in: PALMER NORMAN (ed.), The Recovery of Stolen Art, London 1998, pp. 1 et seqq. Le-gal costs can easily exceed the value of the contested artwork. For example, the Metropolitan Muse-um of Art of New York paid $1,7 million for the Lydian Hoard, but it spent at least twice as much as this to litigate the case. BESSIÈRES MICHEL, We Have To Change the Buyer’s Attitude, UNESCO Courier, 1 April 2001, p. 36 et seqq.
to avoid lawsuits because of the fear that judges may be mechanistic in their attention to procedural rules and not capable of taking into account the interests and the factors that normally characterize restitution cases. Available practice not only shows that judges awkwardly mistake outstanding art treasures to ordinary chattels14, but also evidences that they have an insufficient understanding of market practices and of the causes and consequences of illicit trafficking. Such disparate reasoning and lack of experience, understanding and wisdom – which can be referred to as “fragmentation of knowledge” – is a serious concern.
In light of the foregoing survey, it should not be surprising that the majority of disputes concerning art objects arose in the past three decades have been settled out-of-court15. Indeed, the above shortcomings strengthen the appeal of alternative dispute resolution (ADR) methods – which include negotiation, mediation, conciliation and arbitration.
This means provide the necessary flexibility for handling cultural heritage disputes and
This means provide the necessary flexibility for handling cultural heritage disputes and