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Art & Cultural Heritage Law Newsletter american bar association section of international law winter 2011, vol. IIi, issue no. i Art & Cultural Heritage Law Newsletter A Publication of the Art & Cultural Heritage Law Committee encouraging the mobility of visual art collections in the EU, Part 1 jason-lOuise GrAhAm introduction presidencies2 and has resulted in a num- he concept of the mobility of visu- ber of successful national campaigns al art collections has been a reoc- that have set the international frame- curring focal point of cultural work and guidelines for best practices CONTENTS Tprograms in the EU, spurred on of future collection mobility. During encouraging the mobility of visual art throughout several EU council presiden- Belgium’s Council presidency (July 1 – collections in the EU, Part 1 cies. Europe is home to one of the largest December 31, 2010) Belgian cultural and most expansive cultural heritage professionals and government repre- PAGE 1 collections in the world – which must re- sentatives for culture played an active investing in underwater cultural spond to extremely high demands. role in completing concrete Council Heritage: challenges and Prospects Collection mobility, particularly in the recommendations surrounding indem- PAGE 9 framework of the Lisbon Agenda,1 which nity schemes for collection mobility, fi- cultural Property as a military aims for greater social, cultural and eco- nalizing reports as part of the EU’s ex- objective nomic cohesion, is seen as a policy tool to pert Working Groups in the Open PAGE 12 enhance the many different cultural Method of Coordination (OMC) frame- 3 andy warhol’s antitrust woes: identities in Europe, but also a tool for work. With structured access to exist- cohesion between these diverse entities ing information, recommendations, implications of a new complaint in a structural manner. However, major guidelines, codes and action plans pro- against the andy warhol foundation obstacles including the high costs of duced by top museum professionals on authentication boards and transportation and insurance, different from various member states and EU ac- the marketplace standards of active and passive conser- tors (i.e. expert working groups), many PAGE 16 vation or discrepancies in safety stan- museums will be able to promote and art, law and cultural Heritage in dards and national laws of repatriation, implement the best possible mobility abu Dhabi and thus trust between the players, have 2 The EU Council (Council of Ministers) is made up of one PAGE 19 made it so that on average museums can national minister from each country and represents the arts and cultural organizations — show only a minute percentage of their legislature of the European Union. Every six months, setting the Pace with social media collections at a point in time. With the the EU council rotates its presidency chair in charge support of EU council instruments, the of running meetings and setting the agenda. This way PAGE 26 each country can get a chance to advance both national theme of collection mobility has been de- the Getty museum’s non-victorious bid cultural portfolios as well as a fresh take on EU related veloped throughout major conferences portfolios (such as trade and foreign affairs). to Keep the “victorious Youth” bronze in relation to the different EU council 3 OMC was introduced by the European Council of Lisbon, PAGE 30 and is designed to help states coordinate and collaborate the first annual national cultural 1 European Union, Treaty of Lisbon Amending the Treaty on in addressing the reforms needed in order to reach the European Union and the Treaty Establishing the European Lisbon goals. The OMC’s fourth cycle ended in 2008. For Heritage law moot court competition Community, 13 December 2007, 2007/C 306/01, available at more information see http://ec.europa.eu/invest-in- PAGE 33 http://www.unhcr.org/refworld/docid/476258d32.html (last research/coordination/coordination01_en.htm#1 (last visited Jan. 20, 2011) (hereinafter “Lisbon Agenda”). visited Jan. 14, 2011). Continued on page 3 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW page 1 american bar association section of international law winter 2011, vol. IIi, issue no. i the art & cultural Heritage law committee is a committee of the american bar association section of international law. its current leadership is as follows: CO-ChAIRS mark b. feldman robert H. saunders ViCE ChAIRS Patty Gerstenblith marilyn e. Phelan Peter Karl tompa NEWSlETTEr EDiTOrS David J. bright oscatelli sharon m. erwin m Jacqueline d. farinella ianca NEWSlETTEr CONTRIBuTOrS b Jason-louise Graham On behalf of the Art & Cultural Heritage Law Committee, valentina s. vadi welcome to our Winter 2011 Issue! This summer we provided you with the diverse naomi Kalies perspectives of our distinguished colleagues each addressing a single topic – the amanda niederauer current state and future challenges of the 1970 UNESCO Convention on the Means Kate fitz Gibbon of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership sharon erwin of Cultural Property, as presented at the Committee’s panel at the International leila amineddoleh emily monteith and virginia m. cascio Law Section’s Spring Meeting. For this issue, a new group of accomplished contributors have traveled around the world to report on new important issues and DESiGNEr developments in the field of art, cultural heritage, and cultural property law. www.jameefarinella.com In this issue, Leila Aminadollah reports from Italy on the Italian government’s ArTiSTS continued battle with Getty Museum for the return of its Victorious Youth bronze. Jesse wakeman: www.jessewakeman.net Kate FitzGibbon was in even warmer weather, examining in person the rapid and bianca moscatelli: www.biancamoscatelli.com lai-chung Poon: www.laichungpoon.com sweeping museum building taking place in Abu Dhabi, and considering how this Håkon Gåre: www.gare.no/ aggressive cultural development will maintain harmony with the religious and brandon Jacob mills conservative culture of the region. We are also pleased to present the first in a two- part series by Jason-Louise Graham, reporting from Belgium, that will examine the to get involved with the committee, past, present and future of mobility in art collections within the EU. please e-mail Our own Sharon Erwin considers the various ways cultural organizations are using Jacqueline farinella: social media, and offers some important considerations to those hoping to utilize [email protected] social media as a networking and fundraising tool. Valentina Vadi, a lecturer of or David bright: International Law at Maastricht University in the Netherlands, shares with us her [email protected] investigation into the current state of the law protecting underwater cultural heritage. Finally, Amanda Neiderauer takes a close look at the role of authentication boards, particularly in the context of recent legal action involving the Andy Warhol Subscription & Submissions Foundation, and Naomi Kailes examines troubling inconsistencies within the e-mail Jacqueline farinella: [email protected] or military exception found in international cultural protection law. We are also David bright: [email protected] pleased to present a review of the first annual National Cultural Heritage Law Moot submissions are welcome and will be published Court Competition by Emily Monteith and Virginia Cascio. The second annual at the discretion of the editors. we also competition will be held on February 25-26, 2011 in Chicago. encourage artists to submit their work and border art in jpeg format, which will be duly credited We hope you enjoy this exciting discussion. to the artist. views contained in the newsletter David Bright, Sharon Erwin and Jacqueline Farinella, are those of the authors only and do not represent the official position of thec ommittee or Newsletter Editors the american bar association. All graphics, images, photographs, and text appearing in this newsletter may be protected by copyright. Commercial use of copyrighted material is prohibited without express written permission of the copyright owner. Art & Cultural Heritage Law Committee page 2 american bar association section of international law winter 2011, vol. IIi, issue no. i and loan standards in a concerted man- subject on a European level particularly museum walls and national borders. ner and on a wider scale. in the early 1990s.6 The first legal instru- This institutionalized cultural frame- This article aims to generate an up- ments developed concerning mobility of work, however, could not be forged by dated and complete overview4 of what cultural goods, Regulation (EEC) No harmonization under community law. It are the most important instruments and 3911/927 “on the export of cultural goods” was, rather, achieved through the Open criteria necessary to facilitate collection and Directive 93/7/EEC “on the return of Method of Coordination (OMC), “an ap- mobility of public art collections (which cultural objects unlawfully removed propriate framework for cooperation” are extra commercium, or not technical- from the territory of a Member State” (Council Resolution 21 January 2002), ly part of the economic market of goods), were constructed “for the protection of established by the Lisbon Agenda in within and beyond national borders, as the cultural heritage of the Member 2000. This delicate framework would well as what the obstacles may be. This States”. While these instruments repre- lead to a complex but effective system of article will accomplish its goal by first sent a step towards conceptualizing legal coordination between EU Council presi- presenting the existing legal instru- frameworks of collection mobility, they dencies, the EU culture committee, com- ments and denoting the role of important also raised the sense of national cultural petent Member State executives, players, like the UK and the Netherlands, protectionism8 and the bar for future mo- National Museum Professionals and fi- in developing and implementing these bility of cultural objects. nally international art/cultural institu- instruments. Second, this article will Since 2000, with the onset of the tions.
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