2/2025 (11)

2025

Publication date: 11.12.2025

Description

Published with the financial support of the City of Bydgoszcz

Cover designed by: Morski Studio Graficzne Sp. z o.o.

Licence: CC BY

Editorial team

Editor-in-Chief Alicja Jagielska-Burduk, Anna Koziczak

Deputy Editor-in-Chief Wojciech Szafrański, Andrzej Jakubowski

Issue editors Andrzej Jakubowski, Alicja Jagielska-Burduk

Issue content

Editorial

Andrzej Jakubowski, Alicja Jagielska-Burduk

Santander Art and Culture Law Review, 2/2025 (11), 2025, pp. 7-12

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Interview

The Gunma Declaration on Heritage Ecosystems: Fostering Synergies among People, Institutions, Places, Technologies, and Practices

Toshiyuki Kono, Alicja Jagielska-Burduk, Andrzej Jakubowski

Santander Art and Culture Law Review, 2/2025 (11), 2025, pp. 13-22

https://doi.org/10.4467/2450050XSNR.25.015.22680

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General Articles

Navigating Policy and Practice: EU Cultural Sanctions in Response to Russia’s War against Ukraine

Dorota Jurkiewicz-Eckert

Santander Art and Culture Law Review, 2/2025 (11), 2025, pp. 23-56

https://doi.org/10.4467/2450050XSNR.25.016.22681

Russia’s full-scale invasion of Ukraine in February 2022 triggered a major shift in the EU’s external policy. The scope and brutality of the aggression, as well as the systemic looting and destruction of Ukraine’s cultural heritage, prompted a paradigm shift in the EU’s approach to international cultural relations. For the first time, cultural issues were addressed through EU sanctions adopted under the Common Foreign and Security Policy. Between 2022 and 2025, several sanctions packages introduced restrictive measures targeting three key areas related to culture: individual sanctions on Russian oligarchs – art collectors, restrictions on trade in cultural goods, and efforts to prevent the illicit export of Ukrainian heritage. The EU’s restrictive measures include sanctions against the Russian officials responsible for cultural appropriation and a museum involved in appropriating Ukrainian heritage in occupied Crimea.
Drawing on case studies and open-source investigations, the study examines the application of these sanctions and reflects on their emerging impact. While the freezing of assets (works of art) belonging to sanctioned oligarchs has proven difficult to enforce due to legal loopholes and opaque ownership structures, the trade sanctions have begun to limit Russian influence within the European art sector. The European art market has had to adjust to the absence of wealthy Russian clientele, and museum institutions have also reacted to the loss of Russian patrons. The economic and transport sanctions put a halt to European museums’ cooperation with their Russian partners, including inter-museum loans. The ban on trade in Ukrainian cultural goods of unclear provenance, in turn, was an important step for the EU in developing systemic solutions to help safeguard Ukraine’s cultural heritage. It also reinforced the Union’s mechanisms for combating the illicit trade in cultural property. Its effectiveness will rely on sustained legal development, international cooperation, and consistent application across Member States.

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The Unrecognized Genocide – Rethinking the Legal Framework for the Destruction of Cultural Heritage in Ukraine and Gaza

Karolina Wierczyńska

Santander Art and Culture Law Review, 2/2025 (11), 2025, pp. 57-82

https://doi.org/10.4467/2450050XSNR.25.017.22682

The deliberate destruction of cultural heritage has emerged as a recurring and emblematic feature of modern armed conflicts, revealing profound deficiencies in the international legal framework. From the devastation of Dubrovnik and the Mostar Bridge during the war in former Yugoslavia to the destruction of the Buddhas of Bamiyan and the attacks on monuments and sites in Mali, Iraq, and Syria, such acts target the material embodiments of identity, history, and collective memory. Although cultural heritage – now understood to encompass both tangible and intangible dimensions of human expression – enjoys nominal protection under a wide range of international instruments, including the 1954 Hague Convention, the World Heritage Convention, and the Rome Statute of the International Criminal Court, these regimes have proven insufficient in practice. The ongoing destruction of cultural sites in Ukraine and Gaza exposes a fundamental lacuna in international law: the absence of the concept of cultural genocide from the Genocide Convention (1948). This exclusion, rooted in the travaux préparatoires, prevents the recognition of systematic cultural destruction as an autonomous international crime, limiting accountability to war crimes or crimes against humanity. This article critically examines this normative omission through an analysis of relevant treaty provisions, jurisprudence, and state practice. It argues that the eradication of cultural heritage constitutes a distinct assault on a group’s existence and continuity, and thus merits recognition within the legal framework of genocide. The article concludes by advocating for the re-evaluation or amendment of the Genocide Convention to explicitly include cultural genocide and for the development of equivalent international legal mechanisms.

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Cultural Heritage Destruction and Construction in Border Disputes: A Case Study of South Lebanon

Sherine Al Shallah

Santander Art and Culture Law Review, 2/2025 (11), 2025, pp. 83-112

https://doi.org/10.4467/2450050XSNR.25.018.22683

The southern borders of Lebanon have long been the focus of a territorial dispute, implicating cultural heritage in two key ways. Firstly, the destruction of tangible – and, to some extent, intangible – cultural heritage has been used to weaken the Lebanese population’s connection to borderlands in the south of Lebanon and to reinforce population displacement. Secondly, museum collections and archaeological claims are employed to construct national historical narratives, effectively attributing parts of southern Lebanon’s heritage to other nations and legitimizing associated territorial claims by states linked to those nations. These practices reflect a broader tension between cultural heritage as a national concern, tied to human rights, and as a state concern, tied to territorial sovereignty. Examining them offers both academic insight – contributing to debates on cultural heritage, nations, and states – and practical policy relevance, given their impact on ongoing border demarcation in southern Lebanon. This article explores the intersection of territorial sovereignty and cultural heritage through analysing the international doctrine applied to Lebanon’s southern borders. It reviews the scholarship on transboundary heritage, the link between state succession and cultural heritage, the national characterization of heritage, and its connection to human rights. The study engages with concepts of culture, heritage, identity, territory, statehood, and borders within the Lebanese context and adopts a multidisciplinary approach, drawing on archaeology, ethnography, anthropology, and history.

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Private International Law as a Toolkit for Extraterritorial Refuge of Endangered Cultural Property

Nuray Ekşi

Santander Art and Culture Law Review, 2/2025 (11), 2025, pp. 113-146

https://doi.org/10.4467/2450050XSNR.25.019.22684

The article begins by identifying the threats that give rise to the need for extraterritorial refuge, clarifying the core concepts underpinning this measure, and drawing a conceptual distinction between cultural refuge and the refugee status of individuals. It then examines notable cases of extraterritorial refuge involving endangered cultural property, followed by a brief review of relevant national legislation, international conventions, and soft-law instruments. Extraterritorial refuge between states involves elements governed by both public and private international law, each addressing distinct aspects of the legal relationship. This dual nature shapes not only the allocation of responsibilities between the parties, but also the applicable legal frameworks and dispute resolution mechanisms. This study primarily focusses on the aspects of such arrangements related to private international law, referring to public international law only when necessary to clarify the boundaries of the field and the legal sources on which this measure is based. Furthermore, this study contends that characterizing extraterritorial refuge as a contract of deposit reinforces its basis within private international law. While scholars often focus on public international aspects, this study argues that with respect to the other aspects, existing principles of private international law already offer a viable framework for resolving disputes arising from extraterritorial refuge. However, given the divergent rules on conflict of laws and jurisdiction across various fora, the study advocates for the adoption of a new international convention to harmonize these rules and facilitate the recognition and enforcement of judgments. As a final remark, this study maintains that extraterritorial refuge should be undertaken in good faith, as a genuine effort to protect and preserve cultural property, not to obtain financial or reputational gain.

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Varia

Legal Status of Human Remains under Polish Cultural Heritage Law

Wojciech W. Kowalski

Santander Art and Culture Law Review, 2/2025 (11), 2025, pp. 147-168

https://doi.org/10.4467/2450050XSNR.25.020.22685

This article critically outlines the legal regime governing human remains in Polish law. It opens with a presentation of the legal definitions of remains and other relevant concepts, including, for example, monuments, archaeological monuments, and cemeteries. The apparent inconsistency of health law and cultural heritage law is pointed out here. The second part establishes the legal status of human remains as objects of civil law. An analysis of the views of legal scholars on the relevant legislation has made it possible to recognize them as “things”, which results in their admittance even to commercial circulation. The status of things also stipulates that remains can be recognized as monuments and archaeological monuments according to the 2003 Law on the Protection and Guardianship of Monuments. The exception is the remains of identified persons, which in any case must be released to the family. Therefore, legally speaking they are not monuments and do not become property of the State Treasury as archaeological monuments. The last part of the article signals the main assumptions of the draft of the new Law on Cemeteries and Burial of the Dead, which are relevant to the discussion. The article closes with a brief conclusion.

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Regulated Human Skin: Tattoos as Expressions of Art, Culture, and Public Law

Luis Germán Ortega-Ruíz

Santander Art and Culture Law Review, 2/2025 (11), 2025, pp. 169-184

https://doi.org/10.4467/2450050XSNR.25.021.22686

This article examines the legal consequences of imposing normative, regulatory, or contractual restrictions on tattooing, conceiving it as a form of cultural and artistic expression that challenges the structure of public law. The analysis is situated within public law and cultural law, focussing on the limits to state and institutional measures when they affect fundamental rights such as bodily autonomy, freedom of expression, image rights, and the free development of personality. From a methodological standpoint, the research follows a qualitative and analytical path in legal reasoning, presenting doctrinal analysis with comparative and jurisprudential examination. It draws upon constitutional provisions, statutory frameworks, and judicial precedents, as well as academic discussions in the fields of fundamental rights, health regulation, and bioethics. The inclusion of cases from Colombia, the United States, Japan, Germany, and Ecuador was guided by a comparative rationale that seeks to reveal points of convergence and divergence among legal systems, rather than promoting their normative homogenization. Ultimately, the purpose is to advance a deeper legal comprehension of how tattooing is interpreted within different jurisdictions, especially when it intersects with practices that enjoy constitutional protection as expressions of culture.

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Artworks Behind the Curtain – Creativity and Copyright Law of Theatre Set Designs

Edit Sápi

Santander Art and Culture Law Review, 2/2025 (11), 2025, pp. 185-206

https://doi.org/10.4467/2450050XSNR.25.022.22687

Theatrical productions are often developed through the collaboration of directors, actors, producers, and many contributors, such as the costume and scenery designers. The copyright law protection for scenery designers and costume designers seems clear in many European countries, which means it can be protected by copyright law. On the contrary, in the copyright law of the United States of America, stage sets and costumes are not clearly protected. Even in those countries where protection is clearer, there are problems with the application of the law, especially in relation to the unauthorized use or adaptation of sets and costumes. Thus, the question arises as to which modifications to a set design violate the designer’s copyright. The study pays special attention to the differences for copyrightability of set designs in the United States and in two European countries (Italy and Hungary) where the protection is clearly defined. In the first half of the article, the conceptual approach to the relevant works, the legal background for the copyright protection of set design, the issue of functionality, and the copyrightability of masking and lighting are presented. The following part sheds light on the exploitation of set design, as the boundaries of adaptation and replica and non-replica licences.
The study is based on the legal sources, relevant legal literature, and legal practice of the given countries.

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Legal Commentaries

The Getty Trust Case: Human Rights, Property Issues, and Cultural Heritage Protection

Szymon Zaręba

Santander Art and Culture Law Review, 2/2025 (11), 2025, pp. 207-222

https://doi.org/10.4467/2450050XSNR.25.023.22688

This article examines the 2024 judgment of the European Court of Human Rights (ECtHR) in J. Paul Getty Trust and Others v. Italy, concerning the ownership and cultural heritage status of the ancient bronze statue Atleta di Fano (Victorious Youth). It analyses how the ECtHR addresses questions of cultural property and its inclusion in a nation’s cultural heritage. The judgment demonstrates that, when evaluating the cultural heritage value of a work of art for a particular country, the Court considers the issue of possible state ownership to be of little importance, and instead takes a range of other, even relatively unconventional factors into account, provided that the national authorities have done so as well. This approach reveals the ECtHR’s willingness to grant States Parties to the European Convention on Human Rights a wide margin of appreciation in determining both the relevant facts and their legal interpretation. Moreover, the judgment in J. Paul Getty Trust and Others v. Italy shows a degree of deference even towards domestic findings that may appear less persuasive. Such reasoning ultimately benefits states that have long maintained robust legal frameworks for the appropriation of discovered cultural property, reinforcing their capacity to protect and retain objects of archaeological heritage.

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The Role of Open-Source Intelligence in Protecting Cultural Heritage During Armed Conflict: The Case of Ukraine

Żaneta Gwardzińska-Chowaniec

Santander Art and Culture Law Review, 2/2025 (11), 2025, pp. 223-244

https://doi.org/10.4467/2450050XSNR.25.024.22689

Russia’s ongoing war of aggression against Ukraine, along with the resulting destruction and threats to cultural heritage, poses a major challenge to documenting the scale of the damage and identifying the perpetrators. Recent practice has demonstrated the significant value of information obtained through open-source intelligence (OSINT). The growing recognition of the importance of such information, and the need to safeguard it, highlights the interdependence between information security and the protection of cultural heritage. As information security often depends on visual documentation, this article uses data collected through OSINT to analyse cultural heritage losses in Ukraine between 24 February 2022 (the start of Russia’s full-scale invasion) and 3 July 2025. The objective is to determine whether, and to what extent, information gathered via OSINT can serve as admissible evidence in criminal proceedings before international courts and tribunals when adjudicating crimes against cultural heritage committed during the war against Ukraine. Based on the material, the article posits that the collection and processing of information using OSINT should form the foundation of an institutionalized cultural heritage management system. The discussion is supported by maps and illustrations that visualize the research problem and demonstrate the potential of OSINT in documenting and safeguarding cultural heritage during armed conflicts.

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New Books

Cultural Heritage Law Books Published in 2025

Santander Art and Culture Law Review, 2/2025 (11), 2025, pp. 245-256

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Call for Papers

Measuring Cultural Heritage: Indicators for Cultural Heritage Law and Policy Development

Santander Art and Culture Law Review, 2/2025 (11), 2025, pp. 257-259

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Appendix

Polski rynek sztuki w dobie rosnących wymogów AML – diagnoza, wyzwania, prognozy

Wojciech Szafrański

Santander Art and Culture Law Review, 2/2025 (11), 2025, pp. 260-278

https://doi.org/10.4467/2450050XSNR.25.025.22767

For years, the art market has been an environment vulnerable to money laundering. Art is often treated as a financial asset, while being excluded from meaningful state oversight. The implementation of the 5th AML Directive in 2021 integrated the Polish art market into the existing EU anti-money laundering (AML) regime, initiating intensified activity by the General Inspector of Financial Information (GIIF). The authority now conducts inspections, collects data and develops analytics, gradually improving its understanding of the circulation of cultural goods. Regulated entities failed to adopt the new rules promptly and their output is generally formal in nature, such as preparing documentation for compliance rather than applying a genuine risk-based approach. Meanwhile, both the EU and Poland continue to strengthen their AML framework: the AMLA agency has been created, and work is underway on SIGIIF 2.0 as well as a unified communication channel with the GIIF. However, important gaps remain, including unclear references to definitions of artworks, antiques and collectibles in the VAT Act, the possibility of bypassing the €10,000 threshold through fragmentation, the lack of clear practice regarding artist-entrepreneurs, and limited information exchange among authorities. As AML and heritage-protection regulations have developed separately, these inconsistencies persist. The art market has thus shifted from almost no oversight to dynamic yet still uneven measures, while the development of a coherent AML system remains ongoing.

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Files to download

Title and imprint pages PDF Table of Contents PDF

Słowa kluczowe: EU sanctions, Russia’s war against Ukraine, illicit trafficking of cultural property, EU foreign policy, international cultural relations, protection of Ukrainian heritage, luxury goods ban on Russia, genocide, Ukraine, Gaza, Raphael Lemkin, cultural genocide, contested heritage, transboundary heritage, archaeology weaponization, cultural heritage destruction, cultural heritage construction, Lebanon, endangered cultural property, safe havens, refugee, quasi-refugee status, cultural property refugees, human remains, historical monuments, archaeological monuments, personal goods, cultural law, freedom of bodily expression, personal autonomy, right to one’s own image, tattoo, copyright law of set design, copyrightability of scenography, copyrightability of theatrical costumes, adaptation of set design, copyright law in the theatre, cultural heritage, European Court of Human Rights, acquisition of cultural property, Getty Trust, OSINT, information security, internal security, protection of monuments, AML, money laundering, art. market, trade in works of art, Polish General Inspector of Financial Information (GIIF)