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
Date Written: March 29, 2018
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: Suggested Citation