Professor Ignacio Tirado, Secretary-General UNIDROIT, talks to Alicja Jagielska-Burduk, Claudia S. Quiñones Vilá, and Paul Fabel

Mylène Bidault and Johanne Bouchard talk to Beatriz Barreiro Carril

Article XX(f) of the GATT 1994 provides WTO Members with the possibility to adopt measures, which would otherwise be inconsistent with the GATT 1994, when such measures are “imposed for the protection of national treasures of artistic, historic and archaeological value”, and when the requirements of the so-called “chapeau” of  Article XX are complied with. This provision has never been tested by WTO Panels or the Appellate Body (AB), and scholarly doctrine has not been unanimous in its reading. This paper analyzes this provision, combining previous AB jurisprudence and public international law rules on treaty interpretation and application in order to elucidate the scope of this provision. It is argued, first, that certain forms of cultural expressions such as books, music, or food, even though they may be (re)produced through industrial processes, may fall under the scope of Article XX(f). Second, and most importantly, it is submitted that not all uncertainties concerning Article XX(f) can be resolved at once. This is due to the inherently fluid and ever-evolving nature of artistic, historic, and archaeological value attached to certain goods and to the need to leave enough space for crystallized rules to adapt to values which evolve over time.

As is well known, Article 36 of the Treaty on the Functioning of the European Union balances the role of the internal market with other interests. Among them, the protection of national treasures possessing artistic, historic, or archaeological value may justify prohibitions or restrictions on imports, exports, or goods in transit. These rules are the consequence of the recurring clash of interests between those who ask for a totally free art market and those who argue in favour of controls to avoid the dispersion of national patrimonies. The definition of the term “national treasures” is de facto open to determination by each Member State. Two fundamental points will be critically explored in this work: 1) the EU competence to verify the conformity of domestic rules identifying goods  as belonging to their “national treasures” within the framework of Article 36 TFEU; and 2) the feasibility of using EU law for determining a threshold framework definition.

The main objective of this article is to analyse the scope of EU Member States’ right to determine national treasures for the purpose of Directive 2014/60/EU on the return of cultural objects. While investigating the issue at the EU, human rights, and constitutional levels, the authors argue that the right to define what constitutes national treasures is not an absolute right. The definition of this particular category of cultural objects cannot be used to circumvent the rules on the free movement of goods and to hamper this freedom in an unjustifiable and arbitrary manner. On the human rights and constitutional levels, Member States’ right cannot interfere with the right to enjoy one’s possessions. In particular, it cannot be used as a means of de facto expropriation without indemnity. There may, however, be some conflicts between the European Convention on Human Rights and national constitutional rules. For instance, in the practice of the Polish Constitutional Court, limitations on  ownership arising from the classification of personal property as a national treasure will not be considered as de facto expropriation and do not require indemnification. These differences make the position of an owner of a cultural good difficult. With ownership of cultural goods regulated by EU law, international treaties and national public law his or her situation may differ depending on which court decides the case, and on a law applied by that court.

This article analyses the recent developments on the international, regional, and national level in preventing the trafficking in movable cultural property. The analysis starts by looking at the legal framework provided by the 1970 UNESCO Convention and the necessity of the Convention’s implementation into national law. It then focuses on the 2016 law reform in Germany implementing the 1970 UNESCO Convention as well as Directive 2014/60/EU. Whereas most States have adopted national export provisions protecting their own national cultural property, only a few States – like Canada and Germany – provide for general import provisions. Against the backdrop of the UN Security Council Resolution 2347 (2017)  nd the 2019 EU Import Regulation, the article illustrates that import and export provisions are two sides of the same coin in terms of preventing trafficking in cultural property.

The United Kingdom (UK), like other countries, has made strong commitments to tackling the illicit trade in objects and those that were taken during the Nazi Era. Yet, admitting objects with such questionable provenance into the category of UK national treasures and attempting to keep them in the UK by seeking institutional support to make them available to the public would be at odds with these worthy policies. The main analysis in this paper is focused on the issues raised by the 2017 decision in the UK to designate as a national treasure a Meissen figure that was formerly owned by Emma Budge, whose heirs lost possession of her collection  during the Nazi Era in a forced sale. Using the trope of “tarnished treasures” this paper argues that admitting objects with tainted provenance into the category of national treasures tarnishes the entire category of national treasures. Recognizing the need to retain the integrity of this special category, this paper sets out ways in which the UK export licensing process can more fully take into account provenance before admitting tainted cultural objects into the canon of national treasures, and thus avoiding tarnishing the entire category.

Photography has only recently come to be considered, besides being a creative work protected under copyright law, also as a possible element of “cultural heritage”. Even in Italy, with its traditionally pervasive regulation of cultural property, while the issue was raised in the 1970s it only entered the legal framework on cultural heritage in the 1990s. During the same period, photographs began to be considered as “cultural goods” under the European legal framework, albeit with mixed attitudes. This article provides a summary of this legal evolution, including an analysis of possible effects of the 2017 reform of Italian cultural property export law on this specific area, and discussing the impact of current regulation on the photography market.

Italy has a long tradition of pervasive regulation of its national cultural heritage, including strict control over the export of cultural objects. In contrast to the lack of a definition of “national treasures” which affects EU law, Italian law has striven to achieve an effective definition of the terms “cultural heritage” and “cultural property”, and even more to design specific identification rules for cultural objects. Nonetheless, the issues of definition and related protection on the one hand, and identification on the other, do not always go hand in hand in a legal framework which is made even more complex by the coexistence of two separate models of criminal law protection, as well as by the frequency of reforms, the most recent of which directly affected the export of cultural property. So how has the legal definition of “cultural property” changed over the years within the Italian legislation? How do the peculiarities in the construction of criminal offences “muddle” the overall picture? How much has the 2017 reform affected said definition? Finally, the question arises whether and how all this will possibly impact the gap between national and EU approaches to cultural “goods”. These issues are the main focus of this article.

Switzerland now has a federal registry of its movable cultural property of significant importance. This measure is based on the national legislation implementing the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Only Swiss cultural property or property with a close link to Switzerland is targeted. The registry includes, inter alia, archaeological objects, sculptures by Alberto Giacometti, paintings by Ferdinand Hodler, and also a correspondence by Albert Einstein from the period when he lived in Berne and discovered the theory of relativity. The inclusion of cultural property in the federal registry has two major effects: it restricts both cross-border movement and property rights. On one hand, the permanent export of a listed cultural property is prohibited. Although a temporary export may be authorized for research, conservation, or exhibition purposes. On the other hand, registered cultural property becomes res extra commercium: acquisitive prescription, even in good faith, does not apply. As a result, registered cultural property benefits from enhanced protection against permanent loss due to theft and illicit export.

This article describes the UK’s export control system for works of art and objects of cultural interest, with a focus on the protection of its national treasures. Beginning with an overview of the historical development of export controls in the UK, it goes on to outline the current legislative framework and the different types of export licences that are currently issued under both UK law and EU regulation. The process of assessing cultural objects as potential national treasures is set out, including descriptions of the Waverley criteria and the role of the Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest. The impact of the export controls is then examined, with reference to statistics for the year 2017-2018. Finally, there is a brief discussion on the potential impact of Brexit.

This paper elaborates upon the German Cultural Property Protection Act, enacted in 2016. It enabled the transition from German cultural property law being scattered in many individual legal acts into one uniform and coherent Act. The paper first describes the two pillars of the new Act, the first pillar being the prevention of illicit trade in cultural property. It then continues to analyse the second pillar of the law, which is devoted to the protection of property being part of the German national cultural heritage from illegally leaving German territory. After examining the critical voices with respect to different aspects of the new Act, the article focuses on the  export regime and its challenges for the art trade. In its last part, the paper describes and analyses case law under the old German cultural property regime and draws conclusions as to possible interpretations of the new Act on the ground of the already existing jurisprudence.

Among the European missionary groups in China, only the Jesuits established themselves firmly at court, first in the late Ming and then under the succeeding Qing dynasty. The Milanese painter and lay brother Giuseppe Castiglione (Ch. Lang Shining) served three successive Manchu emperors, designing a suite of late Baroque buildings for the Yuanmingyuan, an imperial palace to the north-west of Beijing. When the palace was looted and burned during the Second Opium War, a set of bronze zodiacal water spouts designed by Castiglione disappeared from Beijing, only to re-appear publicly at auction during the last 30 years. Ai Weiwei has replicated the set, both in bronze and gilt bronze, questioning its Chinese pedigree and, more broadly, whether objects commissioned by an occupying power can be regarded as national treasures, an issue especially relevant to China since large parts of the country were under foreign rule for almost a third of its imperial history. Castiglione  s now regarded in China and Taiwan as a highly significant figure in Chinese painting history.

Under international law, cultural property is protected by a broad range of legal instruments prohibiting its destruction during armed conflicts. At the same time, the premise that international crimes must be of a sufficient gravity plays a crucial role in international criminal law. In this sense, the enforcement of the legislative framework aimed at the protection of cultural property before an international court is only possible if the crime concerned is sufficiently grave in the context of international criminal law. While the latest gravity assessment regarding such a crime was made by the International Criminal Court (ICC) Prosecutor in Al Mahdi case, previous examples include similar assessments made by the International Criminal Tribunal for the former Yugoslavia for the shelling of Dubrovnik in the Jokić and Strugar cases. Recently, in addition to its humanitarian plight on a horrible scale, the Syrian Civil War has also seriously affected all six World Heritage Sites within its territory, including the Site of Palmyra. As a result of this ongoing armed conflict, the monuments in the Site of Palmyra experienced widespread damage inflicted by Daesh. Having reference to the ICC Prosecutor’s assessment of the gravity of the crime in the Al Mahdi case, this article analyses the legal arguments which  support the thesis that its destruction is clearly grave enough to take further action by the international community, even if not yet by the ICC due to its lack of jurisdiction.