Cultural Heritage and State Immunity

in F Francioni & AF Vrdoljak (eds), The Oxford Handbook of International Cultural Heritage Law (OUP Forthcoming)

34 Pages Posted: 29 Mar 2018

See all articles by Riccardo Pavoni

Riccardo Pavoni

University of Siena - Department of Law

Date Written: March 29, 2018

Abstract

The intersection of cultural heritage and State immunity raises intriguing questions of international law and policy. Indeed, as applied to cultural heritage property, State immunity may yield contradictory outcomes. On the one hand, it may bar access to justice by the rightful owners of cultural property bringing restitution claims against foreign States, thereby potentially interfering with the global interest in the suppression of the illicit trafficking of cultural objects. On the other hand, it may advance the international community’s interest in transnational cultural cooperation and mobility of art collections, by shielding cultural heritage property from suits that are often times unrelated to restitution claims, such as suits arising from State breaches of investment obligations or violations of human rights. Since my earlier contribution on the law and practice concerning cultural heritage and State immunity (‘Sovereign Immunity and the Enforcement of International Cultural Property Law’, in F Francioni & J Gordley (eds), Enforcing International Cultural Heritage Law (OUP 2013) 79), a variety of developments have occurred. Law-making processes have been undertaken under the auspices of the Council of Europe and the International Law Association, as well as by a number of States. Several high-profile judicial disputes challenging State immunity for cultural property are still pending and others have arisen, especially in the context of the United States Nazi-looted art litigation. This chapter reviews such developments and seeks to identify trends and prospects. Section II examines State immunity from jurisdiction and the applicability of its exceptions to cases involving cultural property. Section III covers immunity from execution for State cultural property by focusing on the pertinent legal instruments and extensive practice in this area. It discusses the existence and scope of a customary rule of immunity from seizure for cultural heritage property, especially artworks on loan. A brief conclusion follows (section IV).

Keywords: State immunity, cultural heritage, UN Convention on State Immunity, Holocaust art litigation, customary international law, immunity from seizure

JEL Classification: K33

Suggested Citation

Pavoni, Riccardo, Cultural Heritage and State Immunity (March 29, 2018). in F Francioni & AF Vrdoljak (eds), The Oxford Handbook of International Cultural Heritage Law (OUP Forthcoming). Available at SSRN: https://ssrn.com/abstract=3152275

Riccardo Pavoni (Contact Author)

University of Siena - Department of Law ( email )

Via P.A. Mattioli 10
Siena, 53100
Italy

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