State succession in cultural property

401 Pages·2015·4.18 MB·English

by  Jakubowski

CULTURAL HERITAGE LAW AND POLICY
Series Editors
PROFESSOR FRANCESCO FRANCIONI
Professor of International Law and Human Rights and Co-Director of the Academy
of European Law at the European University Institute in Florence
PROFESSOR ANA VRDOLJAK
Associate Dean (Research) and Professor of Law, University of Technology, Sydney
State Succession in Cultural Property
CULTURAL HERITAGE LAW AND POLICY
The aim of this series is to publish significant and original research on and
scholarly analysis of all aspects of cultural heritage law through the lens of
international law, private international law, and comparative law. The series
is wide in scope, traversing disciplines, regions, and viewpoints. Topics given
particular prominence are those which, while of interest to academic lawyers,
have significant bearing on policy making and current public discourse on
the interaction between art, heritage, and the law.
Advisory Board
James Nafziger
Kurt Siehr
Ben Boer
Roger O’Keefe
Marc-Andre Renold
Federico Lenzerini
Keun-Gwan Lee
Foralin Shyllon
State Succession
in Cultural Property
ANDRZEJ JAKUBOWSKI
1
1
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Series Editors’ Preface
At a time when the understandings of states and their role in international law is
being fundamentally challenged, Andrzej Jakubowski’s book on state succession
in cultural property squarely addresses these transformations and provides them
with a much needed historical context. In so doing, it embodies an important aim
of this book series, to place issues concerning the protection of cultural heritage
squarely within the field of international law, broadly understood.
The break-up of federations after the Cold War and emergence of new states in
recent years has reignited interest among international lawyers in state succession
once again. While it is a recurring theme in the development of international law
in the modern era, its application to cultural property has not been examined in
a coherent and dedicated fashion. This book fills this gap by critically examining
the principles and practices relating to state succession with respect to tangible
cultural property, including succession in related rights and obligations under
treaty and customary international law. This alone is an important contribution.
However, as the author himself flags, this work is not confined to a positivist read-
ing of the current law.
International law and related state practice is often in a state of flux and inde-
terminacy. Accordingly, the longer term contribution of this book is the author’s
recognition of the precariousness of the state in present day international law and
international relations – despite (or perhaps because) of its centrality to his topic.
He does this by engaging fully with developments in international human rights
law, humanitarian law and cultural heritage law, and explaining their pertinence
to a fuller, more cogent understanding of state succession in cultural property and
as complementary considerations to the traditional criterion of territoriality in
the event of a redrawing of national boundaries. This approach provides a sound
rationale and a valuable source of innovative criteria for the future evolution of
the law.
Francesco Francioni and Ana Filipa Vrdoljak

Preface
The allocation of cultural treasures in cases of state succession has always stimu-
lated heated disputes and attracted public attention. Conflicts have been exac-
erbated and legal solutions hindered because of the strong emotions attached to
cultural heritage and the rancour that sometimes flows from bitter memories.
Having been born and raised in Poland, the country which in the past 100 years
drastically changed its territorial boundaries and ethnic composition, I am accus-
tomed to the overwhelming nature of the discourse on identity, lost heritage, and
restitution. Assessments of past attitudes to history and contradictions between
present uniform national identity and past multicultural traditions have always
been an important element of public life in Poland, especially since 1989. In fact,
following the political breakthrough almost every country of the former Eastern
bloc initiated the long-awaited discussion regarding rights to cultural heritage
hindered by the post-Second World War Potsdam agreements and Cold War
ideological considerations. Observation of this explosion of previously suppressed
national sentiments led me to focus my legal studies on international heritage law
in search of universal answers to local problems.
The topic of state succession in cultural property is not new to international
practice and scholarship. Indeed, attempts to provide a legal framework for the
cultural aspects of state succession have been undertaken in international prac-
tice and legal scholarship since at least the mid-nineteenth century. These were
strictly bound to the origin of the European nation-state, determining its territo-
rial boundaries according to ethnic and cultural divisions. However, the set of
principles applied to the allocation and distribution of cultural material did not
take a form of any legally binding international instrument. In fact, the issue was
neglected by international lawyers and scholars for several years following the
era of decolonization, marked by the failure of colonized peoples and indigenous
communities to recover their cultural patrimony from former colonial powers.
The major doctrinal efforts were focused on the topic of self-determination of peo-
ples and economic aspects of state succession—core questions for international
legal order and political stability during the Cold War and decolonization. In
this context, the cultural heritage dimension of state succession was perceived as
a secondary issue.
The fall of the Berlin Wall and the subsequent dissolution of the Cold War
political and territorial system, followed by the Balkan and now the Ukrainian
crises, have once again put the issue on the table. Yet the doctrinal response to the
current international practice seems unsatisfactory. As exemplified in the 2001
Resolution of the Institute of International Law (IIL), entitled State Succession
in Matters of Property and Debts, the majority of legal scholarship focuses on the
allocation of tangible cultural heritage based on two paramount criteria: territo-
rial provenance and major cultural significance for a given state. Such an approach
viii Preface
also provides for the solutions largely based on the mechanical application of the
territoriality principle, uti possidetis, and exclusive territorial competence with
regard to cultural property.
This book arises from the criticism of the existing traditional legal construc-
tions, as they arguably do not recognize the important evolution from the nar-
rowly defined ‘cultural property’ towards a broader, more human-oriented idea
of ‘cultural heritage’. Such a conceptual shift has occurred in the last 50 years,
marked by the gradual recognition of the fundamental role performed by cultural
manifestations in the preservation of human dignity and the continuous develop-
ment of all mankind. I endeavour to analyse to what extent the practice and the
theory of state succession reflect this evolution, by reconstructing the principles
regulating interstate arrangements with regard to such matters in a broad histori-
cal and geographical framework. I attempt to identify the peculiarity of cultural
heritage in its relation with the human communities, groups, and individuals who
have created, maintained and enjoyed such a heritage. These, therefore, have a def-
inite interest in staking their claim to the inherent link with their natural cultural
heritage and not seeing it disappear by virtue of territorial vicissitudes and political
changes involved in state succession. This observation leads the analysis towards
the topic of international cultural heritage obligations and their content, sources,
and status in state succession. Indeed, the very essence of the international herit-
age law is grounded in the conviction that cultural heritage concerns go beyond
state sovereignty and thus touch upon the area of human rights. Moreover, these
interests and values are also perceived as being vested in the international com-
munity as a whole. In fact, the recent international practice of state succession in
cultural property seems to be moving towards international cultural cooperation,
and beyond mere restitution and distribution considerations.
Thus, the core objective of this book is to offer a new doctrinal approach, based
both on the principles of international cultural heritage law and human rights law.
This implies the limitation of the contractual freedom of states in the matter of
cultural agreements, in favour of the continuity of international cultural heritage
obligations in cases of state succession. According to such a lens, the book also
proposes a list of guiding principles relating to the succession of states in respect
of tangible cultural heritage, which may contribute to the further development of
both academic debate and international practice.
Andrzej Jakubowski
Acknowledgements
Like most scholarly efforts, this one is heavily indebted to many institutions and
individuals. It is a pleasure to thank them now in print. Research for this book
has been possible by a Polish national doctoral grant at the Law Department
of the European University Institute, which provided me with excellent institu-
tional support. I would also like to acknowledge the assistance of the Max-Planck
Institute for Comparative and Private International Law in Hamburg, and the
Max-Planck Institute for Comparative Public Law and International Law in
Heidelberg.
I am very fortunate to have been able to receive guidance from my supervisor,
Francesco Francioni, who constantly encouraged me in my research and showed
me the true meaning of academic excellence and professionalism. I thank him
for his patience, support, and enthusiasm wholeheartedly. I have also greatly
benefited from the constant exchange of ideas and information with Ana Filipa
Vrdoljak, whose work, International Law, Museums and the Return of Cultural
Objects (2006), has always provided inspiration for my research.
The actual choice of the topic of this book owes a lot to Kurt Siehr, to whom
I am extremely grateful. For suggestions, advice, and useful clarifications at
different moments of my research, I should thank Lyndell V. Prott, Nawojka
Cieślińska-Lobkowicz, Kerstin Odendahl, Wojciech Kowalski, Cynthia Scott,
and Władysław Czapliński. This study also benefited from the comments of par-
ticipants in the three consecutive sessions of the international annual seminar
‘Kunst und Recht’ (Art and Law), organized in 2008–2010 in Berlin, Vienna,
and Munich, where I presented parts of my work in draft form. Special thanks for
stimulating discussions and feedback go to the members of the Working Group
on Cultural Heritage at the European University Institute: Adriana Bessa Da
Costa Antunes Rodrigues, Alessandro Chechi, Lucas Lixinski, Jeanne-Marie
Panayotopoulos, Robert Peters, Valentina Vadi, and Amy Strecker to whom I am
also very grateful for her much appreciated linguistic revision of vast sections of
this book.
An important part of my research is based on fact-finding and case-study
analysis which would never have been possible without the generosity and pro-
fessional assistance of many people. In particular, I would like to acknowledge
Mečislav Borák, Silesian Land’s Museum, Opava, Czech Republic; Esko Häkli,
Helsinki University Library, University of Helsinki, Finland; Miha Pogačnik,
Faculty of Law, University of Nova Gorica, Slovenia; Piotr Kosiewski, the Batory
Foundation, Warsaw; Serhij Kot, Institute of History of Ukraine in Kyiv, National
Academy of Science of Ukraine; Michał Michalski, Ministry of Culture and
National Heritage, Poland; Solvita Zvidriņa, Ministry of Culture, Latvia; Majda
Širca and Silvester Gaberšček, Ministry of Culture, Slovenia; Ljubica Stefanovska,
Ministry of Culture, Republic of Macedonia; Dino Zulumović, Commission to