Immunity for artworks on loan? A review of international customary law and municipal anti-seizure statutes in light of the Liechtenstein litigation.

• Author: Weller, Matthias
• Position: Symposium: International Legal Dimensions of Art and Cultural Property

TABLE OF CONTENTS I. INTRODUCTION II. THE LIECHTENSTEIN CASE: NO PRINCIPLE OF IMMUNITY FOR ARTWORKS AT SIGHT? A. The Artwork B. Facts and Legal Issues C. The Vociferous Silence of the Courts on Immunity for Artworks on Loan D. Immunity for Artworks on Loan as a Rule of International Customary Law? 1. The General Prerequisites of Customary International Law 2. Sovereign Immunity as Rule of International Customary Law 3. Jurisdictional Immunity vs. Immunity from Enforcement 4. Purpose de iure imperii of a Loan? 5. Sovereign Immunity for State Museums? 6. Sovereign Immunity and Ownership? 7. Sovereign Immunity by Agreement? E. Conclusion III. SHAPING ANTI-SEIZURE STATUTES A. Anti-Seizure Statutes and Access to Justice B. Anti-Seizure Statutes and EC-Directive 93/7/EEC C. Anti-Seizure Statutes and Regulatory Choice 1. Self-executing Act vs. Administrative Certification 2. Court Proceedings on Damages IV. CONCLUSIONS I. INTRODUCTION

The immunity of states and their representatives is a principle of customary international law (1) whose roots go back three thousand years: "Wherever in the world relations grew up between separate peoples, actually or potentially hostile, the duty to give special protection to the envoy who bore messages was observed and enforced by sanctions which were in origin religious." (2) Today, Article 29 of the Vienna Convention on Diplomatic Relations expressly prescribes that a diplomatic agent shall be inviolable and that he shall not be liable to any form of arrest or detention by the host state. (3) Artworks on loan from foreign states have metaphorically been characterized as "peace envoys." (4)

The German government recently decided to provide for the regulatory framework that allows public authorities to issue return guarantees with respect to artworks on loan from abroad. (5) In describing its regulatory aim, the government directly borrowed from the terminology of diplomatic privileges and frankly speaks of "safe conduct" for artworks. (6) Academic writing in Germany and Switzerland supports such terminology. (7) Besides Germany, several other states have already enacted anti-seizure statutes granting immunity to artworks on loan from abroad including France (8) and, most recently, Belgium (9) and Switzerland, (10) but also numerous provinces of Canada (11) and states of the United States (12) as well as the U.S. Congress. (13) Australia (14) and Ireland (15) enacted statutes protecting artworks on loan from abroad at least against forfeiture proceedings.

Are we witnessing the emergence of a legal principle of immunity for artworks on loan from abroad? This Article analyzes to what extent such a principle exists or is about to come into being and what its legal potential might be. To this end, Part II examines one of the leading cases about artworks on loan, the Liechtenstein case, and compares it to other controversies about loaned artworks to identify possible signs of a development in court practice towards a principle of immunity for artworks on loan. Against the background of the legal weaknesses of a yet inchoate concept of immunity for artworks on loan under public international law, Part III analyzes the various municipal anti-seizure statutes positively guaranteeing immunity to artworks on loan, comparing the different regulatory schemes and identifies controversial legal issues.

2. THE LIECHTENSTEIN CASE: (16) NO PRINCIPLE OF IMMUNITY FOR ARTWORKS AT SIGHT?

   On its surface, the Liechtenstein case revolves around the interpretation of a treaty concluded between the Allied Forces and Germany shortly after World War II (17) (the Settlement Convention) that, inter alia, excludes German courts from reviewing the legality of expropriations of German external assets seized for reparation purposes under the authority of occupation law. At its heart, the case raises the question of the existence and extent of immunity of artworks on loan from abroad. But before going into the legal issues, it is important to consider the artwork itself.

   1. The Artwork

      The artwork in question is the painting Scene at a Roman Lime Kiln by the Dutch seventeenth century baroque painter Pieter van Laer, also known--due to his deformed stature--as il bamboccio (little barrel) (18) and, as such, founder of a group of mainly Dutch artists called i bamboccianti. This group worked in Rome in the mid-seventeenth century and, with its works, constituted a distinct genre, i bambocciate, small works representing trivial or banal subjects related to contemporary Italian life. Examples of depictions in this genre include blacksmiths shoeing horses in grottoes, (19) brigands attacking travellers, (20) as well as idlers around Roman lime-kilns (21) such as the painting in question here, the Scene at a Roman Lime Kiln (22)--a typical theme of Bamboccianti art. (23)

      In the decades after the World War II, the painting seemed lost, but eventually turned up again in 1981 in an exhibit of the Oblastni gallery in Gottwaldov in Czechoslovakia. (24) It is still unclear whether the painting is identical with Pieter van Laer's Large Limekiln--the preeminent work in this genre--that was painted in Rome in 1637 and that is known through a contemporary engraving by Cornelis Visscher, who appears to have created his work as a copy or as a reconstruction of what he heard about Peter van Laer's Scene at a Roman Limekiln. (25)

      The Large Limekiln strikes for its monumentality: in reality limekilns were small, whereas Peter van Laer's resembles a massive antique ruin. (26) Thus, the artist seems to allude to a conventional motif at the time: Roman ruins. (27) At the same time the painting recalls the ancient Roman practice of fuelling the limekilns with the marble and travertine blocks that formed Rome's monumental ancient structures in the first place--an almost diabolic implication of the painting and, at any rate, an ironic critique of the conventional genres at the time. (28)

   2. Facts and Legal Issues

      The Scene at a Roman Lime Kiln had formed part of the Liechtenstein principal family's art collection at least since 1767. (29) Until the end of World War II, the painting had been stored in one of the family's castles on the territory of the now Czech Republic. In 1946, the then Czechoslovak Republic confiscated the family's property situated in its territory, including the painting. The confiscation was based on Benes Decree no. 12 (the Benes Decree) on the "confiscation and accelerated allocation of agricultural property of German and Hungarian persons and of those having committed treason and acted as enemies of the Czech and Slovak people". (30) An appeal lodged with the local courts by the principal family failed in 1951. (31)

      In 1991, the Wallraf-Richartz Museum of the city of Cologne in Germany obtained the painting as a temporary loan for an art exhibit on i Bamboccianti (32) from the Czech Historical Monuments Office. Again the Liechtenstein principal family, now through His Serene Highness Prince Hans-Adam II of Liechtenstein, moved to recover the painting and applied, at the Cologne Regional Court, for an interim injunction ordering the municipality of Cologne to hand over the painting to a bailiff at the end of the exhibit. The Cologne Regional Court granted the injunction and the painting was sequestered. In the main proceedings, however, the Cologne Regional Court held that the action to recover the painting was inadmissible due to Article 3 of the Settlement Convention. (33) The court's holding is questionable: Article 3 of the Settlement Convention applies to "German external assets," that is, assets situated outside Germany owned by German nationals. (34) It was His Serene Highness Prince Franz Joseph II of Liechtenstein, however, who owned the painting at the time, and he never was a German national. (35) Nevertheless, both the Upper Regional Court of Cologne (36) and the German Federal Court of Justice (37) confirmed the decision on appeal and thus denied the Prince any access to German courts in order to determine his property rights vis-a-vis the Czech Republic.

      The core argument, which has been unanimously rejected in the German academic literature, (38) was that the spirit of the Settlement Convention obliges Germany to leave any decision as to what constitutes "German external assets" to the foreign state seizing the property for reparation purposes with respect to Germany's responsibilities after World War II. (39) In addition, the expropriations under the Benes Decree appeared as forfeitures against certain persons disloyal during the war and occupation rather than "reparations" in the sense of the Settlement Convention. Finally, it is surprising that the picture in question was considered "agricultural property" in the sense of the Benes Decree on "confiscation and accelerated allocation of agricultural property." (40)

      In sum, it appears more than questionable whether the German courts correctly interpreted the Settlement Convention and lawfully deprived the Prince of his day in court under the Settlement Convention's provisions. Nevertheless, neither the German Federal Constitutional Court (41) nor the European Court of Human Rights, (42) to which the Prince subsequently turned, could see any violations of fundamental and human rights as far as guarantees of property and access to justice are concerned. (43) After the failure of all of the Prince's attempts to recover the painting in his individual capacity, the Principality of Liechtenstein sought recourse at the last judicial instance in the world by instituting proceedings against Germany at the International Court of Justice for violation of Liechtenstein's sovereignty and for compensation, but also lost its case. (44)

   3. The Vociferous Silence of the Courts on Immunity for Artworks on Loan

      It seems that the German courts simply did not want to adjudicate upon the delicate and highly politicized question surrounding the legality of the...