Sovereign Immunity and the Enforcement of International Cultural Property Law

Abstract

This chapter examines the extent to which states can raise the defence of sovereign immunity from suit and execution. It describes three exceptions to immunity from suit that may apply in cases involving cultural property. The first is the ‘commercial exception’ to state immunity, such as that provided by article 10 of the United Nations Convention on State Immunity (UNCSI), or § 1605(a)(2) of the Foreign Sovereign Immunities Act (FSIA) in the United States. The second is the ‘ownership, possession, and use of property’ exception and its limitations (as per article 13 UNCSI, or § 1605(a)(4) FSIA). The third is the ‘expropriation’ exception of § 1605(a)(3) of the FSIA. The chapter discusses the difficulties resulting from the recognition of these limited exceptions. In the area of immunity from execution, it considers the extent to which a ‘cultural heritage’ exemption from measures of constraint is legitimate when claims for the recovery of art based on customary or treaty obligations or for the return of cultural objects taken away in times of war or peace are brought before the courts. It also discusses the contours and feasibility of a ‘cultural human rights’ exception to sovereign and sovereign-property immunity along the lines of the Italian Ferrini jurisprudence.