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6. Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986;
7. Panel Report, United States—Sections 301-310 of the Trade Act of 1974, WT/DS152/R.;
8. Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations, with commentaries thereto 2006, Yearbook of the International Law Commission, 2006, vol. II, Part Two.
УДК 341.1/8
Byurabekov R.I., master's student KazGUU University Kazakhstan, Astana RESTITUTION OF CULTURAL PROPERTY DURING PEACETIME
Abstract: Present article deals with the issue of restitution of cultural property, analyzes existing legal framework for the repatriation of cultural objects, illustrates contemporary issues on the restitution of cultural property exported before the creation of any legal framework and their solution.
Keywords: Cultural property, cultural objects, illegal import of cultural property, procedure of return of cultural property.
Бюрабеков Р.И. студент магистрант Университет КазГЮУ Казахстан, г. Астана ВОЗВРАТ КУЛЬТУРНЫХ ЦЕННОСТЕЙ В МИРНОЕ ВРЕМЯ
Аннотация: Данная статья рассматривает проблему возврата культурного достояния, анализирует существующую правовую основу для репатриации культурных объектов, указывает основные современные проблемы возврата культурных объектов вывезенных до заключения правовых документов, а также приводит их решение.
Ключевые слова: Культурное наследие, культурные объекты, незаконный ввоз культурного наследия, процедура возврата культурного наследия.
It is well-known that objects of cultural property could be imported from one state to another more than a decade ago, when there was no applicable legal framework for the protection and repatriation of cultural property.
In order to prevent import of cultural objects from the state of origin several international instruments were concluded. Nonetheless, before proceeding to the frameworks established, the definition of the term "cultural heritage" should be defined.
The first universal instrument that gives explanation to what cultural property is Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954. Although, the above stated convention applies during the
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armed conflict, the definition given might serve a good role for clarifying what cultural property is. The Convention provides that irrespective of origin or ownership cultural property is movable or immovable property of great importance to the cultural heritage of every people.152 According to UNESCO Convention, "cultural property" comprises a variety of property that is designated by a State to be of importance.153 The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 1995 spells almost the same definition, but uses the term "cultural object" instead of "cultural property".154 Hence, "cultural property" comprises any kind of object, no matter of its origin and ownership, that has importance and value to the cultural heritage of a mankind or a State.
Proceeding to the legal framework existing for the purpose of return of cultural objects during peacetime, the UNESCO Convention 1970 and UNIDROIT Convention 1995 play significant role in providing legal basis for the achievement of this aim.
Namely, Article 7b(iii) of the 1970 UNESCO Convention provides that at the request of the State Party of origin, States are obliged to undertake appropriate steps to recover and return any such cultural property imported after the entry into force of this Convention in both States concerned.155Apparently, the 1970 UNESCO Convention on the Means Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property does not apply retroactively and any action that took place before it entry into force cannot have violated any obligations contained in the 1970 Convention.
Additionally, Article 5 of the UNIDROIT Convention 1995 stipulates that a State might request a court or a competent authority to return the cultural object, while the competent authority or the court is obliged to return the object at issue if the requesting State clearly establishes that the fact concerning the removal of cultural object from its territory jeopardizes physical preservation of object, integrity of a complex object, preservation of information, traditional or ritual use of the object by indigenous people.156 Nevertheless, Article 10 of the UNIDROIT Convention specifies, that is applicable to the instances of illegal export occurred after it entry into force.
This approach is clearly supported by contemporary international law. Article 28 of the Vienna Convention of the Law of Treaties stresses that a State Party is not bound by the provision of the treaty regarding actions which took place prior its entry into force.157 The provisions of a treaty are legally binding from the date of entry into force.158 This Court in Ambatielos case clarified that the
152 Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1954, Art. 1.
153 The UNESCO Convention on the Means Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 1970, Art. 1.
154 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, 1995, Art. 2.
155 The UNESCO Convention on the Means Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 1970, Art. 7b(iii).
156 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, 1995, Art. 5.
157 Vienna Convention on the Law of Treaties, 1969, Art. 28.
158 A. Aust, Modern Treaty Law and Practice, Cambridge University Press, 2013, p. 157.
retroactive effect cannot be given for a treaty provision unless the treaty itself so provides.159
On the other hand, certain provisions of a treaty could be applicable before entry into force of the latter if such rules reflect customary international law.160 But this is not the case, due to the absence of constant and uniform practice as well as the absence of opinion juris in respect to the repatriation of return of cultural property. Nonetheless, it may be argued, that the practice of states that are parties to the treaty could be the evidence of opinion juris. But this argument fails due to the fact that norms of a treaty, even if all States are parties to a treaty, needs the opinio juris of these States to become norms of customary character.161
Indeed, State refuse to return cultural property imported before the convention. For instance, the UK refused to return Elgin Marbles to Greece, justifying its refusal by the argument that these cultural objects were imported in the 19th Century. Another example is the Bust of Nefertiti that was transported from Egypt to Germany in the beginning of the 20th century and still remains in Berlin despite all the requests of Egypt.
In this vein, unfortunately, the existing legal framework is applicable only to the import occurred at best, after 1970, while earlier cases still remain to be out of scope of the conventions. This means, that despite all the steps undertaken to create solid legal basis for restitution of cultural property, the issue of the return of cultural property imputed before the conclusion of the conventions still remains relevant. This issue is deepened by the absence of any customary norm supporting the return of cultural property.
On the other hand, some States express their own consent to willingly return cultural objects on their territory. A good example is the Agreement between the Swiss Federal Council and the Government of the Republic of Colombia on the import and repatriation of cultural property 2010, that contains a list of cultural object that fall under the repatriation clauses in the agreement.162 Although it does not cover all of the cultural objects, it is still a great step to fill the existing lacunae in international law.
In conclusion, it is evident, that existing universal legal framework does not allow to repatriate valuably cultural object that were moved long ago. While, on the other hand, this aim might be achieved by bilateral agreements. Nonetheless it depends on the willingness of a state to return cultural property.
References:
1. Convention for the Protection of Cultural Property in the Event of Armed
159 Ambatielos case (Greece v. United Kingdom), Preliminary objection, Judgment, I.C.J. Reports, 1 July 1952, p. 19.
160 Case Concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, I.C.J. Reports, 25 September 1997, para. 42.
161 North Sea Continental Shelf (Federal Republic of Germany v Denmark/Federal Republic of Germany v Netherlands, ICJ Rep 4, 1969), para. 76; G.Tunkin, Is General International Law Customary Law Only?, 4 EJIL, 1993, p. 2.
162 Agreement between the Swiss Federal Council and the Government of the Republic of Colombia on the import and repatriation of cultural property, 2010, Art. 3.
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Conflict, 1954;
2. The UNESCO Convention on the Means Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 1970;
3. UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, 1995;
4. Vienna Convention on the Law of Treaties, 1969;
5. A. Aust, Modern Treaty Law and Practice / A. Aust. - 2nd- ed. - L.: -Cambridge University Press, 2013. - 547 p.;
6. Ambatielos case (Greece v. United Kingdom), Preliminary objection, Judgment, I.C.J. Reports, 1 July 1952;
7. Case Concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, I.C.J. Reports, 25 September 1997;
8. North Sea Continental Shelf (Federal Republic of Germany v Denmark/Federal Republic of Germany v Netherlands), ICJ Rep 4, 1969;
9. G.Tunkin, Is General International Law Customary Law Only? / G. Tunkin // European Journal of International Law. - 1993. - p. 534 - 541;
10. Agreement between the Swiss Federal Council and the Government of the Republic of Colombia on the import and repatriation of cultural property [Online resource]. - access at: http://www.unesco.org/culture/natlaws/media/pdf/switzerland/sw ba colombia 1 0_entof.
