A Realistic Assessment

52 Campuzano v Islamic Republic of Iran, 281 F.Supp.2d 258 (D.D.C., 10 September 2003).

53 Idem. The lead plaintiff, Diana Campuzano, supplied the name for the consolidated case that led to default judgment award, but the cases regarding the artefacts are called Rubin after the lead plaintiff in the group.

54 Rubin v The Islamic Republic of Iran, Civil Action No. 06-11053-GAO, D. Mass., 15 September 2011.

55 However, it should be pointed out that Judge O’Toole did not rely on the Barakat Appeal decision in its entirety. In effect, it appears that he focused only on the English Court’s finding that the Iranian law of 1930 was inconsistent with the “automatic government ownership of all antiquities originating from Iran”. Instead, the Judge failed to acknowledge the subsequent finding that ownership was vest-ed in Iran by a law of 1979 (see supra n. 44 and relatvest-ed text). However, although this decision could be seen as an inaccurate statement of law or as an unfortunate instance of cross-fertilization, it must be emphasised that such selective reading allowed Judge O’Toole to reach the same substantive re-sult of the Barakat Court of Appeal, i.e. to prevent the dispersion of a collection of invaluable ar-chaeological relics (if sold at auction, the artefacts would be scattered among private owners). This is motivated by the different legal issues involved: the Rubin litigation revolved around the question of the immunity from attachment of State cultural property, whereas the Barakat case was a restitution case. Accordingly, the culture-sensitive settlement of these cases required two diametrically opposed decisions: one impeding the deaccessioning of the antiquities from the museums’ collections (in Ru-bin) and another ordering restitution (in Barakat).

D. A Realistic Assessment

The foregoing survey evidences that the disputes where domestic judges have adopted a cross-fertilizing perspective in the field of cultural heritage is not extensive. This is mo-tivated by the fact that cultural heritage law has only had a relatively brief history. More-over, as said, ADR methods are the preferred means for dealing with art disputes. Some cases have been resolved through extra-judicial mechanisms even if lawsuits were al-ready initiated. The case of the Macchiaioli paintings of the Dunedin Art Gallery (New Zealand) is telling. This small collection of 19^th century Italian paintings had vanished before 1946 from the farm cottage of Cino Vitta, the head of the Jewish community in Florence. In 1996, a customs officer identified the paintings as they entered Italy to go on loan at the Panati Gallery of Florence. Litigation followed as the Vitta family brought a civil action against the museum. Having realized that the parties had been involved in 3 years of costly litigation and that its continuance would make it more lengthy and expensive, in 1999 the civil judge proposed that the case be settled by apportioning the paintings between the parties. Eventually these agreed to resolve the dispute out-of-court with an agreement. Under its terms, three paintings returned to New Zealand, two were awarded to the Vitta family⁵⁶.

In any case, the appraisal of the practice of cross-fertilization cannot result from the arithmetic operation of summing up the decisions where this practice has actually been employed. On the contrary, the question whether judicial cross-fertilization should be considered as a useful practice to deal with art disputes, notwithstanding the lack of a legally binding obligation, requires a thorough discussion of its benefits and shortcom-ings.

1. The Strengths

Cross-fertilization entails a number of important advantages. First, it strengthens the decisions of the “listening” court as it provides the evidence that other bodies have reached the same or similar conclusions⁵⁷. Following precedents defuses the crisis of legitimacy by showing that judgments are not predilections or random events⁵⁸. Second, as an auxiliary interpretative instrument, cross-fertilization may facilitate the

56 PALMER, Museums and the Holocaust (cit. n. 16), pp. 17 et seqq. See also: BANDLE ANNE L AU-RE/CHECHI ALESSANDRO/RENOLD MARC-ANDRÉ, Case Landscape with Smokestacks – Friedrich Gutmann Heirs and Daniel Searle, Platform ArThemis (http://unige.ch/art-adr), Art-Law Centre, University of Geneva, March 2012.

57 SLAUGHTER ANNE-MARIE, A Typology of Transjudicial Communication, University of Richmond Law Review, 1994–1995, p. 119.

58 SANDHOLTZ,Prohibiting Plunder(cit.n. 34), p. 15.

killed five people and left 192 people injured⁵². The Palestinian terrorist organization Hamas claimed responsibility for the bombing. On July 2001, the American survivors of the terrorist attack filed a civil suit in the United States against the Islamic Republic of Iran. The plaintiffs alleged that Iran provided material support to Hamas to carry out the attack. As Iran did not appear in the proceedings, the plaintiffs won a default judgment including over $300 million in compensatory and punitive damages⁵³. They sought to execute the judgment against various Iranian-controlled bank accounts. Having achieved minimal success, they tried to attach Iran antiquities held in US museums, either to per-suade Iran to pay damages or to forfeit the artefacts and sell them to the highest bidder.

In particular, the plaintiffs identified a number of priceless artefacts in the possession of the Boston Museum of Fine Arts and Harvard University in Massachusetts. The muse-ums opposed these attempts arguing that the targeted antiquities constituted Iran sover-eign property and therefore were immune from attachment pursuant to United States legislation. In September 2011, Judge O’Toole marked the latest step in this lengthy fray.

With a succinct decision, the Judge denied the motion for attachment of the artefacts by ruling that the plaintiffs failed to demonstrate that the targeted objects belonged to Iran⁵⁴. Importantly, the Judge reached this conclusion by relying on the English judgments in Barakat⁵⁵.

52 Campuzano v Islamic Republic of Iran, 281 F.Supp.2d 258 (D.D.C., 10 September 2003).

53 Idem. The lead plaintiff, Diana Campuzano, supplied the name for the consolidated case that led to default judgment award, but the cases regarding the artefacts are called Rubin after the lead plaintiff in the group.

54 Rubin v The Islamic Republic of Iran, Civil Action No. 06-11053-GAO, D. Mass., 15 September 2011.

55 However, it should be pointed out that Judge O’Toole did not rely on the Barakat Appeal decision in its entirety. In effect, it appears that he focused only on the English Court’s finding that the Iranian law of 1930 was inconsistent with the “automatic government ownership of all antiquities originating from Iran”. Instead, the Judge failed to acknowledge the subsequent finding that ownership was vest-ed in Iran by a law of 1979 (see supra n. 44 and relatvest-ed text). However, although this decision could be seen as an inaccurate statement of law or as an unfortunate instance of cross-fertilization, it must be emphasised that such selective reading allowed Judge O’Toole to reach the same substantive re-sult of the Barakat Court of Appeal, i.e. to prevent the dispersion of a collection of invaluable ar-chaeological relics (if sold at auction, the artefacts would be scattered among private owners). This is motivated by the different legal issues involved: the Rubin litigation revolved around the question of the immunity from attachment of State cultural property, whereas the Barakat case was a restitution case. Accordingly, the culture-sensitive settlement of these cases required two diametrically opposed decisions: one impeding the deaccessioning of the antiquities from the museums’ collections (in Ru-bin) and another ordering restitution (in Barakat).

D. A Realistic Assessment

The foregoing survey evidences that the disputes where domestic judges have adopted a cross-fertilizing perspective in the field of cultural heritage is not extensive. This is mo-tivated by the fact that cultural heritage law has only had a relatively brief history. More-over, as said, ADR methods are the preferred means for dealing with art disputes. Some cases have been resolved through extra-judicial mechanisms even if lawsuits were al-ready initiated. The case of the Macchiaioli paintings of the Dunedin Art Gallery (New Zealand) is telling. This small collection of 19^th century Italian paintings had vanished before 1946 from the farm cottage of Cino Vitta, the head of the Jewish community in Florence. In 1996, a customs officer identified the paintings as they entered Italy to go on loan at the Panati Gallery of Florence. Litigation followed as the Vitta family brought a civil action against the museum. Having realized that the parties had been involved in 3 years of costly litigation and that its continuance would make it more lengthy and expensive, in 1999 the civil judge proposed that the case be settled by apportioning the paintings between the parties. Eventually these agreed to resolve the dispute out-of-court with an agreement. Under its terms, three paintings returned to New Zealand, two were awarded to the Vitta family⁵⁶.

In any case, the appraisal of the practice of cross-fertilization cannot result from the arithmetic operation of summing up the decisions where this practice has actually been employed. On the contrary, the question whether judicial cross-fertilization should be considered as a useful practice to deal with art disputes, notwithstanding the lack of a legally binding obligation, requires a thorough discussion of its benefits and shortcom-ings.

1. The Strengths

Cross-fertilization entails a number of important advantages. First, it strengthens the decisions of the “listening” court as it provides the evidence that other bodies have reached the same or similar conclusions⁵⁷. Following precedents defuses the crisis of legitimacy by showing that judgments are not predilections or random events⁵⁸. Second, as an auxiliary interpretative instrument, cross-fertilization may facilitate the

56 PALMER, Museums and the Holocaust (cit. n. 16), pp. 17 et seqq. See also: BANDLE ANNE L AU-RE/CHECHI ALESSANDRO/RENOLD MARC-ANDRÉ, Case Landscape with Smokestacks – Friedrich Gutmann Heirs and Daniel Searle, Platform ArThemis (http://unige.ch/art-adr), Art-Law Centre, University of Geneva, March 2012.

57 SLAUGHTER ANNE-MARIE, A Typology of Transjudicial Communication, University of Richmond Law Review, 1994–1995, p. 119.

58 SANDHOLTZ,Prohibiting Plunder(cit.n. 34), p. 15.

tation of the law if this offers limited guidance to interpretation⁵⁹. This aspect becomes clear considering that law is never determinate. It provides abstract and general prescrip-tions that are not always clear and understandable to those who must obey it. This is why interpretation – the creative process with which judges identify the applicable rules, clarify their meaning, and relate them to the specific facts of the case – is necessary.

Third, the reference to the experiences of external jurisdictions – which may be cited as indicative of international trends, or to support or reject a particular interpretative ap-proach adopted in a particular country or region – may lead domestic judges to examine their own legal system in a comparative perspective and, if necessary, to urge legislative reforms, especially to fill up the gaps of their constitutive instruments and procedural rules⁶⁰. Fourth, cross-fertilization allows coping with the “fragmentation of knowledge”, that is, the incomplete or partial knowledge of the law on the part of domestic judges.

These often face issues in which they may lack specific training or expertise, such as science and engineering in patent cases and psychology in criminal cases. Apart from hearing and consulting with experts, in those instances judges could gain valuable in-sights into how other jurisdictions have framed the issues and developed solutions by looking at foreign material. Fifth, the citation of foreign sources permits the construction of an international consensus with a view to coping with common problems. This results from the fact that cross-fertilization enables judges to expand the interpretative field of vision and judicial thinking beyond the arguments and legal trends available within their forum and to balance the objectives, values and interests underlying the pertinent rules against other objectives, values and interests⁶¹. In other words, when dealing with a dispute, judges have the power to bring the law up-to-date with prevalent or new societal beliefs and supranational interests. The obvious example relates to the human rights domain, where the interpretation and application of each treaty falls to an international tribunal. Evidently, the jurisprudence elaborated by such a tribunal influences the work of other fora, thereby strengthening the protection of human rights worldwide. Hence, when common concerns are at stake, it is natural that domestic courts be responsive and look beyond the narrow borders of their legal system⁶².

This aspect signals that cross-fertilization allows judges to exercise their discretion in the selection of foreign precedents. Crucially, it also proves that judges are capable of

59 BARELLI MAURO, The Role of Soft Law in the International Legal System: The Case of the United Nations Declaration on the Rights of Indigenous Peoples, International and Comparative Law Quar-terly, 2009, pp. 980 et seqq.

60 BROWN CHESTER,A Common Law of International Adjudication, Oxford 2007, p. 229.

61 DWORKIN, The Judge’s New Role (cit. n. 22).

62 SACERDOTI GIORGIO, Discussion, in: BAUDENBACHER CARL/BUSEK ERHARD (eds.), The Role of International Courts, München 2008, p. 203.

pousing novel solutions adopted in other fora or to engage in norm elaboration⁶³ in order to participate in the “common judicial enterprise” and cope with “common substantive problems”⁶⁴. National courts can do this in several ways. They can provide a re-interpretation of consolidated international legal principles⁶⁵. They can draw on foreign interpretations of treaty language and reject their own government’s interpretation. They can interpret domestic (constitutional) provisions in light of international and foreign law⁶⁶. They can enforce the norms embodied in an international treaty even if the nation-al government or the legislator have not enacted legislation to incorporate the treaty into domestic law. They can take steps to serve their own consideration of the most important needs of contemporary society – especially in the cases where the national government is perceived to be failing to meet these needs – by restraining their own governments or extending jurisdiction over their actions and inactions⁶⁷.

2. The Deficiencies

The realistic observation of the practice of cross-fertilization requires a consideration of its deficiencies. The first problem relates to the fact that judges may err in the selection of case law or may be unprepared to grasp the legal and technical aspects of foreign jurisdictions. In effect, who can guarantee that a national judge will correctly apply for-eign jurisprudence? Therefore, there is the risk that “bad” jurisprudence will be produced or reiterated. Second, the absence of formal ties among courts and tribunals means that judges have total discretion as to whether and to what extent they may take into account foreign jurisprudence. In this respect, it has been argued that judges resort to foreign authorities to support the result they want in the particular case, for instance, to serve the policy objectives of their national government or protect domestic values and policies from external economic, political and legal pressures of interested groups, powerful

63 SHANY YUVAL, No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary, European Journal of International Law, 2009, pp. 73 et seqq, pp. 80 et seqq.

64 SLAUGHTER, A New World Order (cit. n. 33), p. 68.

65 The jurisprudential attitude of the courts in Italy and Belgium in the first part of the 20^th century against the rule of absolute State immunity is illustrative. Initially, these courts intentionally breached such a well-established rule of customary international law and developed the theory of restrictive immunity. This excludes immunity for purely commercial activities carried out by States. Then, other courts adhered to this trend. Later on, national statutes were passed confirming this change. Today, the majority of jurisdiction endorses the restrictive immunity. See VAN ALEBEEK ROSANNE, The Im-munity of States and their Officials in International Criminal Law and International Human Rights Law, Oxford 2008, pp. 12 et seqq.

66 POSNER A.ERIC, The Perils of Global Legalism, Chicago 2009, p. 117.

67 BIANCHI ANDREA, Globalization of Human Rights: The Role of Non-State Actors, in: TEUBNER GUNTHER (ed.), Global Law without a State, Dartmouth 1997, pp. 179 et seqq, pp. 194 et seqq.

tation of the law if this offers limited guidance to interpretation⁵⁹. This aspect becomes clear considering that law is never determinate. It provides abstract and general prescrip-tions that are not always clear and understandable to those who must obey it. This is why interpretation – the creative process with which judges identify the applicable rules, clarify their meaning, and relate them to the specific facts of the case – is necessary.

Third, the reference to the experiences of external jurisdictions – which may be cited as indicative of international trends, or to support or reject a particular interpretative ap-proach adopted in a particular country or region – may lead domestic judges to examine their own legal system in a comparative perspective and, if necessary, to urge legislative reforms, especially to fill up the gaps of their constitutive instruments and procedural rules⁶⁰. Fourth, cross-fertilization allows coping with the “fragmentation of knowledge”, that is, the incomplete or partial knowledge of the law on the part of domestic judges.

These often face issues in which they may lack specific training or expertise, such as science and engineering in patent cases and psychology in criminal cases. Apart from hearing and consulting with experts, in those instances judges could gain valuable in-sights into how other jurisdictions have framed the issues and developed solutions by looking at foreign material. Fifth, the citation of foreign sources permits the construction of an international consensus with a view to coping with common problems. This results from the fact that cross-fertilization enables judges to expand the interpretative field of vision and judicial thinking beyond the arguments and legal trends available within their forum and to balance the objectives, values and interests underlying the pertinent rules against other objectives, values and interests⁶¹. In other words, when dealing with a dispute, judges have the power to bring the law up-to-date with prevalent or new societal beliefs and supranational interests. The obvious example relates to the human rights domain, where the interpretation and application of each treaty falls to an international tribunal. Evidently, the jurisprudence elaborated by such a tribunal influences the work of other fora, thereby strengthening the protection of human rights worldwide. Hence, when common concerns are at stake, it is natural that domestic courts be responsive and look beyond the narrow borders of their legal system⁶².

This aspect signals that cross-fertilization allows judges to exercise their discretion in the selection of foreign precedents. Crucially, it also proves that judges are capable of

59 BARELLI MAURO, The Role of Soft Law in the International Legal System: The Case of the United Nations Declaration on the Rights of Indigenous Peoples, International and Comparative Law Quar-terly, 2009, pp. 980 et seqq.

60 BROWN CHESTER,A Common Law of International Adjudication, Oxford 2007, p. 229.

61 DWORKIN, The Judge’s New Role (cit. n. 22).

62 SACERDOTI GIORGIO, Discussion, in: BAUDENBACHER CARL/BUSEK ERHARD (eds.), The Role of International Courts, München 2008, p. 203.

pousing novel solutions adopted in other fora or to engage in norm elaboration⁶³ in order to participate in the “common judicial enterprise” and cope with “common substantive problems”⁶⁴. National courts can do this in several ways. They can provide a re-interpretation of consolidated international legal principles⁶⁵. They can draw on foreign interpretations of treaty language and reject their own government’s interpretation. They can interpret domestic (constitutional) provisions in light of international and foreign law⁶⁶. They can enforce the norms embodied in an international treaty even if the

pousing novel solutions adopted in other fora or to engage in norm elaboration⁶³ in order to participate in the “common judicial enterprise” and cope with “common substantive problems”⁶⁴. National courts can do this in several ways. They can provide a re-interpretation of consolidated international legal principles⁶⁵. They can draw on foreign interpretations of treaty language and reject their own government’s interpretation. They can interpret domestic (constitutional) provisions in light of international and foreign law⁶⁶. They can enforce the norms embodied in an international treaty even if the