State Immunity and Cultural Objects on Loan

Nout van Woudenberg expert on the international protection of cultural property, is external researcher at the University of Amsterdam and Legal Counsel at the International Law Division of the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

• Foreword;Chapter 1 Introduction; 1.1 Preface; 1.2 What is immunity from seizure?; 1.3 Why would immunity from seizure be necessary?; 1.4 Approaches to granting immunity from seizure; 1.5 What are cultural objects? ;1.6 Cultural objects as good will ambassadors?; 1.7 What is a State?; 1.8 International agreements related to international cultural cooperation and immunity from seizure; 1.9 Method and structure of this study;Chapter 2 The notion of customary international law; 2.1 Custom as a source of international law; 2.2 State practice and opinio juris; 2.3 Duration of the practice; 2.4 Uniformity of the practice; 2.5 Practice accepted as law: opinio juris; 2.6 Dissenting States; 2.7 In conclusion;Chapter 3 State immunity and cultural objects; 3.1 Immunity from jurisdiction; from absolute to restrictive immunity; 3.2 Immunity from measures of constraint; 3.3 2004 UN Convention on Jurisdictional Immunities of States and Their Property; 3.3.1 General introduction; 3.3.2 Commercial transactions and international art loans; 3.3.3 State enterprises; 3.3.4 Immunity from measures of constraint; 3.4 European Convention on State Immunity; 3.5 Inter-American Draft Convention on Jurisdictional Immunity of States; 3.6 Asian-African Legal Consultative Committee; 3.7 Draft Convention on State Immunity by the International Law Association; 3.8 Institute of International Law; 3.9 In conclusion; Chapter 4 Situation in the United States of America; 4.1 State immunity: situation in the United States of America; 4.1.1 General approach of the United States in respect of State immunity; 4.1.2 State immunity under the FSIA; 4.1.3 Retroactive application: Republic of Austria v. Altmann ; 4.1.4 The ‘commercial exception’: Westfi eld v. Federal Republic of Germany; 4.1.5 The ‘takings exception’: Cassirer v. Kingdom of Spain; 4.1.6 Once more the ‘takings exception’: Agudas Chasidei Chabad of United States v. Russian Federation et al. ; 4.1.7 One more time the ‘takings exception’: Orkin v. Switzerland; 4.1.8 The ‘commercial exception’ and the ‘takings exception’ combined: the Herzog case; 4.2 Immunity from measures of constraint for State property; 4.2.1 Sections 1609-1611 of the FSIA; 4.2.2 Seizure attempts in practice: Rubin v. the Islamic Republic of Iran; 4.3 Special legislation involving immunity from seizure for cultural objects; 4.3.1 Federal immunity from seizure legislation; 4.3.2 Immunity from seizure legislation in the State of New York; 4.4 Case law with regard to immunity from seizure legislation; 4.4.1 Romanov v. The Florida International Museum Inc. ; 4.4.2 Magness v. Russian Federation; 4.4.3 Delocque-Fourcaud v. Los Angeles County Museum of Art; 4.4.4 Deutsch v. Metropolitan Museum of Art; 4.4.5 Malewicz v. City of Amsterdam; 4.4.6 Berckheyde painting The Golden Bend in the Herengracht in Amsterdam; 4.4.7 Portrait of Wally case; 4.5 In conclusion; Chapter 5 Situation in Canada and Central and South America; 5.1 Situation in Canada; 5.1.1 State immunity; 5.1.2 Immunity from seizure of cultural objects; 5.1.3 Exhibition of the Dead Sea Scrolls; 5.2 Situation in Central and South America; 5.3 In conclusion;Chapter 6 Situation in the European Union; 6.1 The genesis of mobility of collections; 6.2 The OMC Expert Working Group and the subgroup ‘Immunity from Seizure’; 6.3 Conclusions of the subgroup ‘Immunity from Seizure’; 6.4 Future work; 6.5 In conclusion;Chapter 7 Situation in the United Kingdom of Great Britain and Northern Ireland; 7.1 State immunity in the United Kingdom; 7.2 The way towards immunity from seizure legislation; 7.3 The Tribunals, Courts and Enforcement Act 2007; 7.4 In conclusion;Chapter 8 Situation in the Netherlands; 8.1 State immunity in the Netherlands; 8.1.1 Act on General Provisions of Kingdom Legislation; 8.1.2 Code of Civil Procedure; 8.1.3 Regulations concerning the Bailiff and Court Bailiff s Act; 8.1.4 Relationship with the 2004 UN Convention on Jurisdictional Immunities of States and Their Property; 8.2 Immunity from seizure for cultural objects belonging to foreign States; 8.2.1 The situation during the last decades of the 20th century; 8.2.2 The situation since the beginning of the 21st century; 8.3 In conclusion;Chapter 9 Situation in various other European States; 9.1 France; 9.1.1 The Shchukin case; 9.1.2 Immunity from seizure legislation for cultural objects on loan; 9.1.3 The French Association of Tsarist Bond Holders; 9.2 Germany; 9.2.1 The way towards immunity from seizure legislation for cultural objects on loan; 9.2.2 Immunity from seizure legislation for cultural objects on loan; 9.2.3 The Berlin Court: cultural objects immune under international law; 9.3 Austria; 9.3.1 Immunity from seizure legislation for cultural objects on loan; 9.3.2 The seizure of Czech cultural objects on loan to the Belvedere; 9.4 Belgium; 9.5 Switzerland; 9.5.1 The Noga case; 9.5.2 Declarations of the Swiss Federal Ministry of Foreign Affairs to the Egyptian authorities; 9.5.3 Immunity from seizure legislation for cultural objects on loan; 9.6 Liechtenstein; 9.7 Finland; 9.8 The Czech Republic; 9.9 Member States of the European Union which are in the process of enacting immunity from seizure legislation for cultural objects on loan; 9.9.1 Italy; 9.9.1.1 Measures of constraint against foreign States in Italy; 9.9.1.2 The Dance by Matisse; 9.9.1.3 Discussions with regard to immunity from seizure legislation for cultural objects on loan; 9.9.2 Hungary; 9.10 Considerations of several other Member States of the European Union concerning immunity from seizure legislation; 9.11 The Russian Federation; 9.12 In conclusion; Chapter 10 Situation in Asia, Australia and on the African continent; 10.1 Situation in Asia; 10.1.1 Israel; 10.1.1.1 The Foreign States Immunity Law; 10.1.1.2 Towards immunity legislation for cultural objects on loan; 10.1.1.3 The content of the Loan of Cultural Objects (Restriction of Jurisdiction) Law; 10.1.2 The Islamic Republic of Iran; 10.1.3 The United Arabic Emirates; 10.1.4 Pakistan; 10.1.5 The People’s Republic of China and the territory of Taiwan; 10.1.6 Singapore; 10.1.7 Japan; 10.1.8 Other States of the region; 10.2 Situation in Australia; 10.2.1 Situation with regard to State immunity; 10.2.2 The 1986 Protection of Movable Cultural Heritage Act; 10.2.3 The Bark Etchings case; 10.3 Situation on the African continent; 10.3.1 Egypt; 10.3.2 South Africa; 10.3.3 Other States of the region; 10.4 In conclusion;Chapter 11 Immunity from seizure at odds with international law?; 11.1 International agreements addressing illicit import, export, transfer or expropriation of cultural objects; 11.1.1 UNESCO; 11.1.2 Unidroit; 11.1.3 Council of Europe; 11.1.4 European Union; 11.1.5 Organization of American States; 11.1.6 The 1998 Washington Principles, the 2000 Vilnius Declaration and the 2009 Terezin Declaration; 11.2 Which obligation would prevail?; 11.3 Immunity from seizure at odds with obligations under the European Convention on Human Rights?; 11.3.1 Introduction; 11.3.2 Article 6(1) ECHR; 11.3.3 Article 1, Protocol 1 to the ECHR; 11.4 In conclusion;Chapter 12 Cultural objects on loan and belonging to foreign States – immune from seizure under customary international law?; 12.1 General; 12.2 State practice and the ratio behind it; 12.2.1 Method of working; 12.2.2 State practice; 12.2.3 The ratio behind the State practice; 12.3 Academic opinions; 12.4 Primary conclusions; 12.5 Some possible limitations; 12.5.1 Cultural objects which have been the subject of a serious breach of an obligation arising under a peremptory norm of general international law, or which are already subject to return obligations under international or European law; 12.5.2 Immunity from seizure: only in civil or also in criminal proceedings? ; 12.6 Supplementary conclusions; List of Sources; Index; Acknowledgements.

"Overall, Nout van Woudenberg achieves his goal of writing a book that will be a valuable resource for both national governments and cultural institutions. This is an excellent and highly commendable book, which provides more clarity and legal certainty in the field of lending cultural state property. It is not an exaggeration to describe this volume as one of the best contributions to cultural heritage law in the last decade."Vittorio Mainetti, Adjoint scientifique, University of Geneva, Geneva, Switzerland, The Hague Journal of Diplomacy 9 (2014) 211-219."...Van Woudenberg's text is...a helpful encyclopedia of international legislation and jurisprudence on this evolving subject, and will be a worthwhile addition to the libraries of governmental agencies, cultural institutions, attorneys, and other stake-holders in the international art market."Lawrence M. Kaye and Howard N. Spiegler, International Journal of Cultural Property