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hostages
This
page considers anti-seizure regimes that protect cultural
property lent by one nation to another from being used as
'hostages' in private trading disputes.
It covers -
introduction
Contrary to some claims, 'cultural kidnapping' is not an unprecedented
and particularly modern phenomenon. It can be traced back
to at least the 1920s. However, it has gained prominence in
the past 15 years as individuals and businesses have sought
to claim works from official collections that have been lent
to institutions in another country.
That litigation has not been based on an assertion by the
claimant of previous possession or ownership. Instead it has
been based on the attractiveness of art works as assets that
might be impounded to force a government to comply with obligations
in unrelated commercial disputes.
Under international law, national cultural property such as
paintings and antiquities are broadly protected against seizure.
There is also protection against other government assets,
with a differentiation between those associated with diplomatic
activity (under for example the 1961 Vienna Convention
on Diplomatic Relations) and those that form part of
government business enterprises such as aircraft, rail freightcars
and locomotives, and ocean-going vessels.
In general the international legal doctrine of sovereign immunity
provides that foreign sovereign states are immune from domestic
courts. That immunity varies significantly from one jurisdiction
to another. It usually covers governmental or public activities
relating to administration and protection does not extend
to private acts or commercial activity.
The rationale for the doctrine is that if the courts of a
sovereign state were to assert jurisdiction over the activities
of another sovereign state that would conflict with expectations
about the independence and sovereign equality of states.
Differentiation between government and commercial activity
has been reflected in a history of attempts to seize foreign
assets that enter a particular jurisdiction, for example vessels
and commodities entering a claimant-friendly jurisdiction's
harbour, oil or gas moving across a nation to another country
or timber floating down a river that passes through the territory
of a particular state.
That litigation has not been restricted to citizens/residents
of the jurisdiction: some claimants have gone jurisdiction
shopping, influenced by the likelihood that a foreign court
would find in their favour (eg action against the USSR in
the 1920s) and the appearance of particular assets within
their grasp (eg soviet vessels docked more frequently in New
York than in Zurich or Vaduz).
Requests for courts to impound loaned works of art grew during
the 1990s, in emulation of litigation to recover items that
had been looted from private
collections during the Holocaust and with media coverage of
perceived precedents that included action
for the return of human remains and ethnographic material
or attempted seizure of visiting dignitaries for claimed crimes
against humanity. In 2005 for example Indigenous groups obtained
an injunction, subsequently overturned, to prevent return
of Aboriginal ceremonial artefacts to the British Museum.
Hostage taking has served to encourage the offending government
to make a settlement in commercial disputes or merely to shame
the government and gain international publicity for a dispute
involving a government agency or a private body operating
with government support. It has been criticised as a breach
of international etiquette or global law.
Proponents have responded that 'piracy' is in fact a legitimate
response to misbehaviour by a state commercial body or the
willingness of some states to improperly shelter private businesses
and individuals that have breached contract or other law.
Observers have similarly made comments such as
Art
is now so valuable that it is an ever more tempting target
for those wanting to recoup bad debts. Following the example
of slapping a lien on ships sailing into harbours where
creditors are waiting, lawyers see paintings as a tempting
target.
Many states have dealt with the problem of impounding by strengthening
foreign immunities legislation (eg the Foreign States
Immunities Act 1985 in Australia or the US Foreign
Sovereign Immunities Act of 1976) or by passing special
legislation regarding protection for loans of cultural property.
That has reflected forecasts that Third World countries will
seek to repatriate cultural property, that ethnic or other
minorities will "hijack" exhibitions as redress
for cultural oppression (historic or otherwise) and that major
"galleries may soon find that no one will risk sending
national treasures to these shores for fear that they will
become hostage in a financial or cultural dispute".
regimes and the ICC
In 2006 the UK government announced plans to give art on loan
from other governments immunity from "cultural kidnapping".
The announcement reflected claims that Russian museums had
recurrently refused to lend art to Britain because of fears
that aggrieved businessmen will try to seize those works as
collateral for payment of debt incurred by Russian government
agencies or even private sector bodies. The UK offers no specific
immunity to artefacts lent by foreign museums.
Mikhail Piotrovsky of Russia's Hermitage commented in 2006
that he needed "concrete guarantees" of immunity
-
Art
works are now being used as hostages in trading disputes.
We will reconsider all our agreements for exhibitions with
countries which cannot give proper guarantees to art and
where governments do not understand that art is not a commercial
commodity.
Institutions
that rely on loans as the basis for blockbuster exhibitions
have fretted that uncertain protection will mean that major
works become inaccessible, thereby reducing the box office
and denying consumers the pleasure of viewing particular items.
The Tate gallery in the UK for example reputedly cancelled
a planned exhibition of Constantin Brancusi's The Kiss
because it could not give the Craiova Museum of Art in Romania
a guarantee against seizure by a potential claimant. The State
Hermitage Museum in St Petersburg refused to lend Titian's
St Sebastian to the UK National Gallery in 2003 and
more recently threatened not to support the Tate Modern's
2006 Kandinsky exhibition.
Many international contracts are predicated on dispute resolution
by a tribunal under the International Chamber of Commerce
(ICC) Rules of Arbitration, a form of ADR.
Those contracts typically feature a waiver by a government
or by its 'alter ego' agencies of immunity for prosecution
and execution of arbitration judgements. Such arrangements
have been sporadically and confusingly recognised by national
courts.
In 2000 for example the French Supreme Court held that states
that agree to arbitration cannot resist enforcement of awards
against their assets in France on the basis of sovereign immunity
from execution. That decision was based on the premise that
agreement by a state to arbitration under the ICC Rules is
generally considered to constitute a waiver of jurisdiction
and a state's immunity from execution.
incidents
There has been no major study of 'hostage taking' or impoundment
of works on loan from government museums to underpin litigation
by private entities.
Incidents have included -
A suit against the Los Angeles County Museum of Art in 2003
regarding a loan of 76 paintings from Russian institutions
(which had previously been granted immunity) demanded greater
'recognition' of descendants of owners whose work was appropriated
by the Bolsheviks. That recognition included a substantial
compensation payment and, more originally, a share in the
museum's revenue from the exhibition.
Recurrent attempts by the Swiss-based Noga trading company
and its owners the Gaon family to secure payment of up to
US$900m after a 1993 food for oil deal with a Russian ministry
went wrong. Seizure of 54 works by Renoir, Manet, Degas,
Monet, van Gogh, Gauguin and other French masters from the
Pushkin State Museum of Fine Arts was authorised by a Swiss
Court when the paintings were being returned to Moscow from
an exhibition in Martigny. They were insured for US$1bn.
Noga had rejected an out-of-court settlement in 1993, winning
initial litigation about the deal in a Luxembourg court
in 1993 (with assets of the Russian Federation, Central
Bank, Economic Ministry, Finance Ministry, Vneshekonombank,
Vneshtorgbank and other entities being temporarily frozen)
and appeal of the decision in a Stockholm arbitration court.
French accounts of the Russian diplomatic service, the Central
Bank, Vneshekonombank and state companies such as Rosneft
were temporarily frozen in 2000. In that year Noga filed
suit in a US court demanding "arrest" of Russian
uranium stored in the US under an intergovernmental agreement.
The Russian yacht Sedov was temporarily impounded
in a French port while participating in the Brest Regatta.
A NY court refused in 2002 to allow the implementation in
the US of the the Stockholm court's decision. Noga threatened
to seize the Russian presidential jet when Vladimir Putin
was on a state visit to Paris on an official visit. During
the following year Noga sought to seize Russian Su-30MK
and MiG-AT aircraft at the Le Bourget Air Show.
In 2005 the British Museum and Kew Gardens criticised Australia
after action to retrieve bark etchings, a ceremonial emu
and a head-dress that were temporarily impounded while on
loan for an exhibition in Australia. The Dja Dja Wurrung
Native Title Group of Victoria unsuccessfully sought to
prevent return of the items to the UK (Museum Boards
of Victoria v Carter [2005] FCA 645 20 and Carter
v Minister for Aboriginal Affairs [2005] FCA 667 92).
Dawn Casey advised the Victorian Government that seizure
of the artefacts would result in "no further loans
to any Australian museums including art galleries"
and warned that for the sake of three disputed artefacts
some 40,000 other Indigenous objects and human remains held
in overseas institutions "would most probably never
be seen in Australia again. Museums in Europe ... would
cease to lend other indigenous people's cultural material
to their countries of origin".
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