Globalization in art law: clash of interests and international tendencies.

• Author: Jayme, Erik

TABLE OF CONTENTS I. INTRODUCTION II. THE GLOBAL INTERESTS 1. Public Access to Artwork 2. Anti-Seizure Statutes 3. Protection of Human Rights 4. Peace and Time Limitations III. THE NATIONAL INTERESTS 1. Art and National Identity 2. Export control 3. The Nationality of Artwork 4. Nations, Minorities IV. THE INTERESTS OF PRIVATE PARTIES 1. Ownership Restrictions 2. Conflict of laws--lex rei sitae or lex originis? 3. The Artist and the "droit de suite" V. THE INTERESTS OF THE ARTWORKS 1. Religious Functions 2. Protection of the Context--Parks and Gardens. 3. Integrity VI. THE INTERESTS OF THE ART MARKET--FREEDOM OF TRADE 1. Free Market and Export Control 2. Antitrust Law 3. Legal Certainty VII. THE CLASH OF INTERESTS VIII. NEW LEGAL TECHNIQUES IN INTERNATIONAL CASES 1. "Narrative" Norms--The Washington Principles 2. Factual Significance of Foreign Art Law--Local Data IX. CONCLUSIONS I. INTRODUCTION

Current issues of international art law usually bring about a clash of interests of strongly different types. In most cases, the solution is derived from an approach that is characterized by a more or less hidden weighing of interests. Therefore, it seems useful to identify these interests in order to show the recent tendencies in international art law.

As far as I can see, the following five typical interests can be extracted from the battle grounds of international art law: (1) the global interests of the international civil society, (2) the national interests of states and nations in preserving artworks of national significance in the home country, (3) the private interests of the owners of an artwork or the artists, (4) the interests of the artworks themselves, and finally (5) the market interests.

2. THE GLOBAL INTERESTS

   Let me start with the global interests. Globalization means that the international civil society articulates its interests independently from those of states and nations. It has become a worldwide concern that states do not sufficiently account for mankind's interests independently from state or national interests.

   In the field of art law, two main features illustrate the impact of globalization: the first is a claim for public access to important artworks; the second is the protection of the free movement of art objects for international exhibitions.

   1. Public Access to Artwork

      The public access argument can be traced back to the early nineteenth century. When Antonio Canova, the famous sculptor and diplomat for the Pope, asked at the Paris conference of 1815 for the return of the artwork Napoleon had taken from Italy to France, he was faced with the argument that the restitution would disperse the many objects to different places not accessible to the public. (1) In a letter of October 2, 1815, Canova explained to the then-Secretary of State, Cardinal Consalvi, that he had confirmed to the representatives of the other states that the artwork in question would be made accessible in a public gallery. This argument convinced the other participants of the conference. They let the works of art return from France to their places of origin. After Canova's return to Rome, he started building a new public museum, the Museo Chiaramonti, which shows the protection of artwork by the state in its iconographic series of frescoes. (2) In our days, the public access argument has become so important that--to give an example--the German nobility organized for the first time, during the winter season of 2004-2005, a common exhibition: "Treasures of German Castles" in Munich, where century-old collections were shown to the public for the first time. (3)

   2. Anti-Seizure Statutes

      In a global world, international tours guarantee public access to artwork. Global interests favor the enactment of anti-seizure statutes that aim to protect the exhibited works from third party claims and ensure restitution to the lender. (4) Under such anti-seizure statutes, no actions against or sequestrations of artworks on loan are permissible during the time of the exhibition.

      In continental Europe, the terms sauf conduit or freies Geleit are used to underline the idea that works of art are seen as diplomats of good will and therefore enjoy international protection during their voyage across the boundaries of the states. (5) We find such laws, for example, in France, Germany, and Switzerland, (6) and recently also in Belgium. (7) For the United States, we may mention the Federal Immunity of Seizure Act. (8)

      The global interests in public access to artwork are typically taken care of by public and private museums, which are faced with a growing number of legal problems concerning provenance and restitution. (9)

   3. Protection of Human Rights

      Another legal expression of the global society is the protection of human rights. (10) This is, of course, a controversial subject. Human rights are conceived as individual rights rather than the public concern of the civil society. There is a tendency, however, to emphasize the universal aspect of human rights; a universal jurisdiction for violations of human rights is recognized more and more frequently. (11) This tendency is rooted in international criminal law (12) but also has a certain influence in civil matters such as art law. (13) Even where damages cannot be compensated, court proceedings might produce an impetus to reformulate codes of conduct within the global society. (14)

      Later in my presentation, I will discuss the legal quality of the Washington Conference Principles on Nazi-Confiscated Art of December 3, 1998. (15) But, we can already note here that violations of human rights transcend the individual rights, and their protection has become part of the global interests. (16)

   4. Peace and Time Limitations

      The last, but not least important, aspect of the global interest concerns peace. For centuries, art objects were taken during and after wars and brought from one country to another. If we look at the legal instruments which aim at promoting peace, we see, above all, that the factor of time leads to a certain limitation of actions: by prescription or usucapio" in the Roman law tradition, or by adverse possession in the common law world. (17) Both of these legal features result in the passing of title to the possessor. (18)

      There is a tendency, however, to consider the possessor's bad faith. (19) In those situations, the limitation argument will not be admitted or, at least, the period of limitation is extended. (20) For instance, special statutes concern claims of victims of the Holocaust. At the same time, the owner of an artwork is obliged to claim his property once he has knowledge of the present-day possessor. Here, the "discovery rule establishes the temporal boundary on the basis of fault and reasonableness." (21)

      In addition, there is art litigation where states and nations are involved. In those situations, the global interest in peace pleads for a settlement rather than a national judgment which cannot be executed in a foreign territory.

3. THE NATIONAL INTERESTS

   Let us now turn to the national interests of the states.

   1. Art and National Identity

      Artworks are important elements of national identity. (22) To give an example: when the European Union decided in December of last year to open negotiations with Turkey to prepare an accession treaty, the minister of cultural affairs of the small country of Denmark advanced the idea to collect in a book the most important Danish artworks. (23) "We must know why we are and how we are," the minister said. He installed seven commissions to find out which are the "twelve pearls" of Danish painting, architecture, design, theatre, music, and literature. Each Danish citizen is to receive a copy of the book including a CD and DVD in order to foster the consciousness of Danish identity.

      Again, this idea can be traced back to the early nineteenth century, when nations that longed for unification, such as Italy and Germany, based their identity on artworks. Once more, Antonio Canova played an important role in this development. He created national artworks--for example, the sculpture in the church of Santa Croce in Florence of Italy as a person mourning at the tomb of the national poet, Vittorio Alfieri. (24) In Prussia, a disciple of Canova's, Christian Daniel Rauch, was to become the sculptor of the German national artworks such as the statue of Queen Louise of Prussia, located at her tomb in Berlin. (25) But also in earlier times, national pride motivated states to retain important artworks in their home countries. Thus, when Guido Reni--the most famous Italian painter of the seventeenth century--finished the Nozze di Bacco e Arianna for Queen Henrietta Maria of England, Pope Urban VIII ordered a copy by Romanelli to be sent as substitute to the Queen, because "non volere che l'Italia restasse priva di cosi gran tesoro" (26) (He did not want Italy to be deprived of such a great treasure).

   2. Export control

      These national interests generate statutes which erect trade barriers by controlling the export of national cultural property; these barriers are considered justified even in light of the fundamental principle of free market circulation. Thus, Article 30 of the Treaty Establishing the European Community contains exceptions to the prohibition on cross-border trade restrictions between member states. (27) One of these exceptions concerns restrictions justified on the ground of "protect[ing] of national treasures possessing artistic, historic or archaeological value." (28) Note that this exception only applies to "national" treasures. For other works of art which do not belong to these national treasures, such trade restrictions are not permitted. For "national" artworks there is a tendency to restrict alienability. (29) They may become res extra commercium. (30)

   3. The Nationality of Artwork

      The above-mentioned Article 30 of the European Treaty raises a difficult question, which is how to define the nationality of artworks. (31)...