Department of Law The Effects of State Succession on Cultural Property: Ownership, Control, Protection Andrzej Jakubowski Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Florence, May 2011 2 EUROPEAN UNIVERSITY INSTITUTE Department of Law The Effects of State Succession on Cultural Property: Ownership, Control, Protection Andrzej Jakubowski Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Examining Board: Prof. Francesco Francioni, European University Institute (Supervisor) Prof. Ernst-Ulrich Petersmann, European University Institute Prof. Kurt Siehr, Max-Planck-Institute for Comparative and International Private Law Prof. Władysław Czapliński, Polish Academy of Sciences © 2011, Andrzej Jakubowski No part of this thesis may be copied, reproduced or transmitted without prior permission of the author 1 2 Acknowledgments It is a pleasure to acknowledge the input and assistance that I have received in the writing of this dissertation. Research for this study has been possible by a Polish national grant at the Law Department of the European University Institute, which provided me with excellent institutional support. I would also like to acknowledge the assistance of the Max-Planck Institute for Comparative and Private International Law in Hamburg, and the Max-Planck Institute for Comparative Public Law and International Law in Heidelberg. I am very fortunate to have been able to receive guidance from my supervisor, Francesco Francioni, who constantly encouraged me in my research and showed me what academic excellence and professionalism stand for. I am whole heartedly thankful for his patience, support and enthusiasm. I have also greatly benefited from the constant exchange of ideas and information with Ana Filipa Vrdoljak, whose work, International Law, Museums and the Return of Cultural Objects (2006) has always provided inspiration for my research. The actual choice of the topic for my doctoral dissertation owes a lot to Kurt Siehr, to whom I am extremely grateful. For suggestions, advice and useful clarifications at different moments of my research, I should thank Lyndell V. Prott, Nawojka Cieślińska-Lobkowicz, Kerstin Odendahl, Wojciech Kowalski and Władysław Czapliński. This study also benefited from the comments of participants in the three consecutive sessions of the international annual seminar ―Kunst und Recht‖ (Art&Law), organized in 2008-2010 in Berlin, Vienna and Munich, where I presented parts of my work in draft. Special thanks for stimulating discussions and feedback go to the members of the Working Group on Cultural Heritage at the European University Institute: Adriana Bessa Da Costa Antunes Rodrigues, Alessandro Chechi, Lucas Lixinski, Jeanne-Marie Panayotopoulos, Robert Peters, Valentina Vadi and Amy Strecker to whom I am also very grateful for her much appreciated linguistic revision of this study. An important part of my research is based on fact-finding and case-study analysis which would never have been possible without the generosity and professional assistance of many people. In particular, I would like to acknowledge Mečislav Borák, Silesian Land's Museum, Opava, Czech Republic; Esko Häkli, Helsinki University Library, University of Helsinki, 3 Finland; Miha Pogačnik, Faculty of Law, University of Nova Gorica, Slovenia; Piotr Kosiewski, the Batory Foundation, Warsaw; Serhij Kot, Institute of History of Ukraine in Kiev, National Academy of Science of Ukraine; Michał Michalski, Ministry of Culture and National Heritage, Poland; Solvita Zvidriņa, Ministry of Culture, Latvia; Majda Ńirca and Silvester Gaberńček, Ministry of Culture, Slovenia; Ljubica Stefanovska, Ministry of Culture, Republic of Macedonia; Dino Zulumović, Commission to Preserve National Monuments, Bosnia-Herzegovina; Jovita Mikalkėnaitė, Ministry of Foreign Affairs, Lithuania. Last but not least, I wish to thank my family for their unfailing encouragement, patience and optimism which gave me the strength to complete this dissertation. 4 Abstract The purpose of this study was to investigate the legal effects of state succession on cultural property. This is not a new topic of international law. Indeed, the attempts to provide a legal framework for the cultural aspects of state succession have been undertaken in international practice and legal scholarship since at least the mid-nineteenth century. Initially, these were strictly bound to the origin of the European nation-state, determining its territorial boundaries accordingly to ethnic and cultural divisions. However, the concept of cultural property in international law has evolved towards a broader, more human-oriented idea of cultural heritage. Such a conceptual shift has occurred in the last fifty years, marked by the gradual recognition of the fundamental role performed by cultural manifestations in the preservation of human dignity and the continuous development of all mankind. This study discusses to what extent the practice and the theory of state succession reflect this evolution. It attempts to reconstruct the principles regulating interstate arrangements with regard to such matters, contextualizing them in a broad historical and geographical framework. Particular attention has been paid to the question of state succession to international cultural heritage obligations. This piece of work explores their content, sources and status in state succession. It explains that nowadays the preservation and enjoyment of cultural heritage do not constitute the exclusive concern of state sovereignty. On the contrary, such values are of general interest to the international community as a whole. Therefore, the study advocates a new doctrinal approach, based both on the principles of international cultural heritage law and human rights law. This implies the limitation of the contractual freedom of states in the matter of cultural agreements, in favour of the continuity of international cultural heritage obligations in cases of state succession. Finally, the study proposes a list of guiding principles relating to the succession of states in respect of tangible cultural heritage, which may contribute to the further development of international practice. 5 6 Table of contents List of illustrations 15 List of abbreviations 17 Preface 19 Introduction 21 1. The meaning of ‗cultural heritage‘ 22 2. Legal effects of state succession on tangible cultural heritage 26 2.1. Title (cause) of state succession 28 2.2. Succession to pre-existing legal situations 31 2.2.1. State property 32 2.2.2. State archives 36 2.2.3. State succession to international obligations 37 3. Overview of legal scholarship 40 4. Methodology and structure of the study 45 Part One. Emergence and elaboration of principles (1815-1939) 49 Chapter 1. Territoriality, nation-state and the integrity of national 53 patrimony in the nineteenth century 1.1. Concept of territoriality 55 1.1.1. Westphalian state, territorial transfers and the allocation of 55 archives and movable property a) Archives 56 b) Public movable property 57 1.1.2. Pre-1815 veneration of art and the condemnation of war 58 plunder 1.1.3. The Final Act of the Congress of Vienna (1815) 62 a) Pillage of art and its justification 62 b) Negotiations during the 1815 Congress of Vienna 63 7 c) Return of cultural objects and state succession 67 1.2 State and national patrimony 68 1.3. The principle of territoriality and the integrity of national 73 patrimony in the practice of state succession 1.3.1. Unification of Germany 74 1.3.2. Italian Risorgimento 75 a) 1866 Treaty of Vienna 75 b) Further settlements 77 1.4. Conclusion 79 Chapter 2. State succession to cultural property: peace treaty practice 83 (1918-1939) 2.1. Self-determination and cultural patrimony 85 2.1.1. External self-determination and reconstitution of national 86 patrimony 2.1.2. Internal self-determination and the protection of cultural 88 minority rights 2.2. Allocation of cultural property – the complexity of the post- 93 WWI regulations 2.3. Restoration of national patrimonies displaced or lost in relation 94 to WWI 2.4. Territorial cession and the allocation of cultural property 96 2.5. Dissolution of a multinational state and the reintegration of 98 national patrimonies 2.5.1. Dissolution of the German Empire 99 2.5.2. Dissolution of Austria-Hungary 100 a) Treaty provisions 100 b) Decisions of the international arbitrage committee (1921- 103 1922) c) The 1920 Austro-Italian Artistic Convention 107 d) The 1932 Austro-Hungarian Agreement 109 e) Historic archives of Austria-Hungary 110 8 2.5.3. Dissolution of the Russian Empire 112 a) Treaties with the Baltic States and Finland 112 b) The settlements with Poland – the 1921 Treaty of Riga and 114 its aftermath 2.6. Succession to colonial territories and the status of cultural 117 patrimony 2.7. Conclusion – a legal appraisal 119 Part Two. Consolidation and codification of the law (1940-1989) 123 Chapter 3. The Second World War, decolonization and state succession to 127 cultural property Section 1. 131 3.1. Cultural property in the post-WWII legal landscape 131 3.1.1. Post-WWII restitution programme 131 3.1.2. The division of Europe and the Cold War 134 3.1.3. Decolonization and the Cold War 136 3.2. Post-WWII Europe and state succession to cultural property 138 3.2.1. Peace treaty practice 138 a) Italy 139 b) Hungary 144 3.2.2. Beyond succession – de facto and ex gratia solutions 145 a) The theory of debellatio