Definition of "Cultural Property" According to Giannada
It has everything: international intrigue, a long-standing debt between a post-communist and western state, renowned works of art, the Swiss Alps, and a business man’s dogged pursuit of his $900 million, plus interest. Is it the latest James Bond’s GoldenEye? Not really, rather a Swiss business man’s golden billion.
An interesting story caught my eye in the New York Times a couple of weeks ago, which sent me on an academic search of what constitutes “cultural property” under international law (“Swiss Businessman Tries to Seize Art in a Dispute With Russia,” Steven Lee Meyers, New York Times, Nov. 17, 2005). In mid November 2005, the authorities in the Swiss canton of Valais stormed into the Pierre Giannadda Foundation in Martigny pursuant to a court order sought by Nessim D. Gaon, a Swiss business man. The Giannadda foundation had been exhibiting paintings by renowned artists – such as Poussin, Manet, Renoir and Cezanne – that were on display from the Pushkin State Museum of Fine Arts of Moscow. The reason for this seizure is a 14-year old debt between Gaon’s company NOGA and the former government of the Soviet Union. In 1991, NOGA negotiated loans to the former Soviet Unions in the amount of $60 million in exchange for oil. Although payments by the debtor were initially forthcoming, the relationship between the parties eventually soured in the early 90s when the Soviet Union made the difficult transition to its modern incarnation.
NOGA’s legal pursuit of its substantial investment began in 1993 and has resulted in a string of heavily publicized stints against Russian assets. The company has filed numerous lawsuits around the world, including the United States and Sweden, and has sought to seize no less than President Vladimir V. Putin’s personal jet, a Russian sailing ship (crew included) in the French port of Brest, and two Russian fighter jets at an air show in Paris. In the case of the master paintings, NOGA’s preliminary injunction was overruled by Switzlerland’s Federal Council – the executive branch of the Swiss government - that chose to intervene due to the state’s national interest in the matter. According to the Swiss Federal Council, “[i]n international law, national cultural goods are regarded as public property, which may not be confiscated.”
The reason this story was particularly interesting to me, aside from my fascination with international law, is that these paintings could not really be considered as part of a Russian “national heritage” as none of them appear to originate from Russian artists. In fact, the artists cited by the media are predominantly northern European, or French, in nature. So the question necessarily becomes: what is cultural property and why is it a public rather than a private good? Or more specifically, is a nexus with the state of geographic origin a pre-requisite for property to be considered “cultural property”?
Little did I know that I stumbled upon a long-standing discussion on the appropriate statutory, or treaty, interpretation of “cultural property” and the role that states should play in providing protection for such goods. The term “cultural property” is defined in a variety of instruments, namely the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (“Hague Convention”), the 1970 United Nations Educational, Scientific and Cultural Organizations (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (“UNESCO Convention”), the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property (“Second Hague Protocol”) and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (“UNIDROIT Convention”).
These instruments provide two divergent positions on the meaning of the term “cultural property.” Although differences stem from the circumstances surrounding the drafting of these documents, they are nevertheless telling of the dissonant interpretations under international law. One way of interpreting the term is by thinking of property, not as an object with particular geographic origin, but rather as an object that should be protected as part of humanity’s legacy for future generations. In other words, cultural property is property that belongs to global human culture, regardless of its geographic origins, national jurisdiction, or rules of property ownership. This is the position espoused by the war conventions, the Hague Convention and its Protocols, and its emphasis is on protecting a state’s cultural artifacts in times of war. Certainly under these circumstances, distinction between truly national cultural property and foreign property is not feasible.
Another position adopted by the UNESCO and UNIDROIT conventions, and probably more appropriate for the Giannada situation, is to consider cultural property as part of a national cultural heritage. In other words, it is property that, regardless of its geographic location, cannot be alienated from its state of origin. This gives nations of origin an interest in locating and repatriating cultural property from within its geographic boundaries. The notion of repatriation conjures up a North-South or Market-Source nation concept. As the abundance of cultural artifacts increases in a developing source nation so does the potential for export to developed market nation. An unrestricted market that follows the definition of cultural property under the war convention does not adequately deal with the exportation of cultural goods from these culturally wealthy source nations. In other words, the war conventions deal with preventing the destruction of cultural property in times of war whereas the UNESCO/UNIDROIT conventions deal with the growth of illicit markets in cultural goods.
So where does this leave us for the Giannada situation? Neither Convention
truly addresses the situation in Swizterland. In Giannada, one government
was lending its state owned paintings of various national origins, none
of which were Russian, to another state. Switzerland decided it best to
avoid any political conflict between the two countries by treating the
paintings as public cultural property belonging to Russia. So are we developing
a broader theory of international law where cultural property can be any
kind of property that is owned by a state? What are the boundaries to
this concept where a state is acting as a market participant – or
is that the boundary itself? And more specifically – can we as contractual
parties change the legal nature of cultural property? Like so many issues
under international law, there are always conflicting interpretations,
and in the end, politics always win over judicial principles - in international
law, at least.