Sovereign Immunity and the Enforcement of International Cultural Property Law

Abstract

The present paper examines the intersection of the law of State immunity and cultural property issues. The primary interest in undertaking this investigation lies in the fact that, while immunity from seizure and other measures of constraint aims to protect and further the cultural and educational function of State cultural heritage property, immunity from jurisdiction (understood stricto sensu as immunity from suit) may bar legitimate restitution claims brought by individuals who have been unlawfully dispossessed of cultural objects. Therefore, a clear-cut and comprehensive solution to the problems raised by the expanding litigation in this area is not forthcoming. Customary and treaty obligations in the field of cultural heritage, such as the duty to return stolen cultural objects, are inconclusive in that regard and stand in the background as the reference materials guiding the analysis. What seems most needed is instead a wide-ranging balancing exercise that takes into account all of the values, interests and circumstances at stake in art-and-immunity cases. Obviously, this assumes that State immunity for jure imperii acts, such as the expropriation of property in times of armed conflict, should not be regarded as a dogma of contemporary international law. On the contrary, it is submitted that factors such as the alternative remedies available to dispossessed individuals or the commission of egregious breaches of human rights by the defendant State may well have a bearing on the enjoyment of sovereign immunity.