Still pending in The Netherlands is the interesting case of the Crimean Treasures. After the Court of First Instance had ordered the repatriation of the museum objects to the Ukraine based on the 1970 UNESCO Convention, the Amsterdam Court of Appeal reversed that decision in an interim judgment of 16 July 2019.
A recap of the case in first instance
In 2014 the Allard Pierson Museum in Amsterdam (APM) hosted the exhibition ‘Crimea – the Golden Island in the Black Sea’ with a collection of archaeological artefacts on loan from museums of the Ukraine. A month after opening of the exhibition the Autonomous Republic of Crimea decided to secede from the Ukraine, and Crimea (including four museum that had lent objects for the exhibition to the APM, hereinafter ‘the Crimean museums’) was annexed by the Russian Federation. Subsequently, both the State of Ukraine and the Crimean museums demanded the return of the artefacts from the APM. The APM suspended its obligation to return the museum objects pending a final decision.
The Court of First Instance focused on the question of the applicability of the Dutch Heritage Act and ultimately the 1970 UNESCO Convention. The Court noted that the objective of the 1970 UNESCO Convention is the protection of cultural property for – and if necessary, the return to – the State Party of origin. Pursuant to provisions 31 and 32 of the Vienna Convention on the Law of Treaties, the Court of First Instance used adjacent guidelines (such as the UNIDROIT Convention and the EU-Directive) as well as the lex originis, Ukrainian law on Exportation, Importation and restitution of cultural values (article 23), to interpret the definition of illicit export. It concluded that a State Party of origin should be able to reclaim its cultural property if it remains in another country without a valid export permit, even if the property was legitimately brought outside the territory at the start.
Interim judgment of the Amsterdam Court of Appeal
The appellate court held a different view on the issue of repatriation. The Court confirmed the applicability of provisions 31 and 32 of the Vienna Convention regarding the interpretation of a treaty. However, it curtailed the Court of First Instance in stating that those provisions should be applied to determine ‘what the State Parties have agreed in the 1970 UNESCO Convention; they should not be used to read certain obligations into the Convention that may be useful in this matter but have not been agreed upon.’ (Verdict Court of Appeal, at 4.19).
The Court of Appeal considered that the 1970 UNESCO Convention solely aims to fight the illicit export and import of cultural property. One could argue that the Convention may give room for a broader explanation of the term ‘illicit export’, meaning that illicit export could possibly cover validly exported cultural property that remains in the other state in violation of an export certificate – but only if the objective of the Convention explicitly opposes that property’s presence in the recipient country. The matter at hand is not a case of theft, clandestine excavation or illicit export. The Crimean treasures remain in the Netherlands not due to a violation of the temporary export permit, but due to conflicting interests of the Crimean museums and the State of origin. The Court of Appeal found therein no justification for a broader interpretation of the term ‘illicit export’ under the 1970 UNESCO Convention and as a result concluded that the Dutch Heritage Act was not applicable in this case.
The Court of Appeal has surely not chosen the easiest way out with this decision. Having discarded the repatriation option, the Court now needs to decide whom the Crimean objects belong to as per existing rights, legal acts and the legal effects thereof. These rights should be judged pursuant to Ukrainian law. As this requires a more thorough understanding of foreign law, the Court has asked the Parties to further elaborate and substantiate on the (ownership) right and related issues. The case was set for the filing of an answer by the Parties in March 2020; no date for the final decision has yet been given.
In the most practical sense, this case makes us query the extent of the export permit in the global exchange of cultural property. Is the temporary export permit necessary for an object to leave the country of origin or is it a document that should also secure the return of the cultural property to the issuer?
On a more contemplative level, one notes the under-appreciated status of regional interests, local communities and minorities in the 1970 UNESCO Convention, as discussed by Evelien Campfens in an Art Antiquity & Law article. Obviously there has been an increased attention to the interests of certain groups of people beyond State-level since the drafting of the UNESCO Convention, but this case shows that possible rights of communities to cultural property are still insufficiently protected.
Image credit: Allard Pierson Museum, Amsterdam, via Wikimedia Commons.