UNESCO EXPERT MEETING ON THE SETTLEMENT OF DISPUTES CONCERNING CULTURAL HERITAGE DISPLACED DURING THE SECOND WORLD WAR. (Paris, May 2000)

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1 CLT-2000/CONF/60 l/3 Paris, June 2000 Original: English UNESCO EXPERT MEETING ON THE SETTLEMENT OF DISPUTES CONCERNING CULTURAL HERITAGE DISPLACED DURING THE SECOND WORLD WAR (Paris, May 2000) FINAL REPORT 1. The tenth session of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation ( the Intergovernmental Committee ), which took place in Paris from 25 to 28 January 1999, discussed, among other things, the issue of the restitution of cultural property displaced during the Second World War. During the discussion a large number of delegations proposed that a committee of experts be set up and that the Secretariat coordinate its activities in this area with other international organizations. They also requested the Secretariat to take into account other existing legal instruments and acts on this issue. The discussion resulted in the elaboration and subsequent adoption of Recommendation No. 7 which invited the Director-General to convene a working group of experts in this field, with the task of preparing a more comprehensive report for the next session of the Committee. 2. Following this Recommendation, the Secretariat convened such a meeting in Paris from 29 to 31 May 2000 with the participation of eight experts invited in their personal capacity. The meeting was also attended by representatives of the Council of Europe, the International Council on Archives and the International Council of Museums. A copy of the list of participants is attached in Annex I.. 3. On behalf of the Director-General, Mr Mounir Bouchenaki, Assistant Director-General for Culture a. i., opened the meeting. In his presentation he summarized the main reasons for convening the meeting such as the existence of unresolved claims related to cultural property displaced during the Second World War; the impact of those claims on bilateral relations; the importance of the eight principles for the settlement of such disputes, raised by a member of the UNESCO Secretariat, speaking in her personal capacity at the January 1995 New York symposium The Spoils of War - World War II and its Aftermath: The Loss, Reappearance and Recovery of Cultural Property and; finally, the role of the Intergovernmental Committee in the mediation of disputes on cultural property displaced during the Second World War as well as the application of the eight principles. CLT-20OO/CONF.601/CLD.1

2 2 4. In conformity with the provisional agenda, the meeting elected by consensus Professor Wojciech Kowalski (Poland) as Chairperson and Dr. Emmanuelle Nemoz (France) as Rapporteur. The meeting then proceeded to the discussion of the provisional agenda and decided to include a new point on national practice, including legal and non-legal aspects, related to cultural property displaced during the Second World War. The meeting accepted this proposal and the agenda was adopted as amended. 5. The Secretariat then provided the participants and observers with a detailed explanation on reasons for the involvement of UNESCO in the settlement of disputes related to cultural property displaced during the Second World War and the role of the Intergovernmental Committee in this respect. This introduction was followed by the presentation of eight national reports and the experience of the three Organizations attending the meeting as observers. 6. The participants and observers then proceeded to a throughout principle-by-principle discussion. It was stressed that the proposed principles are aimed as a general guidance for bilateral interstate negotiations in order to facilitate those negotiations, thus contributing to the conclusion of bilateral treaties. They are not aimed at amending, abrogating or replacing existing international treaties on this issue. Nor are they aimed at the restitution of cultural objects belonging to a particular ethnic or community group. Member States are free to embody all of them or only some of them in legally binding treaties. 7. Every principle was discussed once, and a second discussion took place of Principles 1-3. The main points of the discussion may be summarized as follows: l Denomination of principles Some participants objected to the word Principles and preferred the term Guidelines because of the more general character of the latter. However, the majority of participants were in favour of keeping the original term Principles because of its moral connotation and weight. The title was also modified, thus reading: Principles for the return of cultural objects displaced during or as a result of the Second World War. l Principle 1 This Principle, representing a foundation for the rest of the Principles, was discussed in great detail relating particularly to the temporal elements (taking of cultural objects during or as a result of the Second World War), the scope of occupied and entered (the latter being understood as covering a case when the territory in question was entered by friendly troops), the use of words such as territory, country and State and also the issue of cultural link between cultural objects which have been taken and the State which currently holds them. Several participants raised the question of the applicability of the law of succession and in particular, of the Vienna Convention on Succession of States in respect of State Property, Archives and Debts Principle 2 The participants agreed on the deletion of the reference to 1939 because of differences between the beginning of hostilities in Europe and in other parts of the world and in this

3 3 context the examples of China and Ethiopia were quoted. deletion should also apply to the other principles. It was also agreed that this l Principle 3 During the discussion some participants wished to simplify the current wording in order to avoid a possible controversy related to the interpretation of the form of legal transactions made during the Second World War. One participant referred to art transactions in some parts of Western Europe and pointed out that some of them were carried out voluntarily and without duress, thus proposing to exclude them from the application of this Principle. l Principle 4 The discussion of this Principle led to two points of view: while some participants wished to maintain it in the set of Principles, one expert proposed its deletion, referring to the non-retroactivity of the 1954 Protocol to events occurring before its adoption and entry into force. Different views were expressed on the meaning of the terms reparations and compensatory restitution, in particular, within the context of the relevant national legislation. l Principle 5 In discussion several participants made a reference to the State responsible for the application of this Principle. One participant referred to the application of the notion of international responsibility as understood in international public law. l Principle 6 On Principle 6, there was general agreement but efforts were made to be more specific by adding phrases such as for claims or for restitution at the end of the wording of the Principle. l Principle 7 The participants reiterated the importance of returning the relevant scientific documentation as well as inventories of missing cultural objects. l Principle 8 While Principle 8 met a large degree of support, one participant wanted to broaden its applicability by omitting the word unique ; another wished to increase the scope of this Principle to lost cultural objects. Others agreed to accept the Principle but only for a very narrow scope. 8. One participant proposed an additional principle proposing voluntary return of cultural objects displaced during or as a result of the Second World War. Another participant proposed the insertion of a Preamble encouraging bilateral negotiations and another principle (Principle 9) related to the obligatory compensatory restitution of one State to compensate another State for the material damage inflicted during the war on the cultural

4 4 objects of another State. A copy of the Preamble and Principle 9 is attached in Annexes 2 and 3, respectively. 9. As the meeting was able to discuss only Principles 1, 2 and 3 in a second reading, there was a general consensus that another expert meeting should be held, preferably before the eleventh session of the Intergovernmental Committee. The representative of the Director- General informed the meeting that the Secretariat would endeavour to identify the necessary financial and staff resources, allowing it to organize this meeting, but mentioned also the time constraints. One participant offered to explore the possibility of seeking extrabudgetary resources in the country of his residence for the venue of such a meeting.

5 ANNEX I CLT-2000/CONF/60 l/2 Paris, 30 May 2000 Original : English/French UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL ORGANIZATION EXPERT MEETING ON THE SETTLEMENT OF DISPUTES CONCERNING CULTURAL HERITAGE DISPLACED DURING THE SECOND WORLD WAR (Paris, May 2000) REUNION D EXPERTS SUR LE REGLEMENT DES DIFFERENDS CONCERNANT LES BIENS CULTURELS DEPLACES AU COURS DE LA SECONDE GUERRE MONDIALE (Paris, mai 2000) List of participants/liste des participants I. PARTICIPANTS Prof. Mark BOGUSLAVSKY Institute of State and Law, Moscow, Znamenka, 30 and Moscow, 42 Syvtsev vrajek TCl : (7095)-795-O&45 Fax : (7095) Dr. Guido CARDUCCI Maitre de Confkrences des FacultCs de Droit. 47, me Cler Paris TCl /Fax : (33.1)

6 2 Mr Zaude HAILEMARIAM Address Box Kista Stockholm, Sweden Fax/Tel : (46) zaude.hailemariam@swipnet.se Prof. Wojciech KOWALSKI Department of Intellectual and Cultural Property Law University of Silesia Ul. Bankowa 8 Katowice, Poland Fax : (4832) (Office) Tel/Fax : (48 32) (Home) Dr Vladyslav V. MAKSYMOV Koretsky s Institute of State and Law International and Comparative Law Dept. 4, Triohsviatyleska St., Kyiv, 01001, Ukraine Tel : (380.44) , Fax : (380.44) , maxvmov@hotmail.com Dr. Emmanuelle NEMOZ 18, rue Childebert Lyon Tel : (334) Fax : (334) enemoz@aol.com Dr. Stephan TURNER Lehrstuhl fiir Staats-und Vijlkenecht Rechts-und Wirtschaftswissenschaftliche Bau 16 Im Stadtwald 6600 SAARBRUCKEN Germany Tel : (49-681) Fax : (49-681) Stefan.Tumer@t-online.de Fakultat

7 3 Ms Prof. Yunxia WANG Associate Professor of Comparative Law School of Law Peoples s University of China Beijing China, Fax : (8610) hsuzhongqpublic2.east.cn.net II. OBSERVERS/OBSERVATEURS Intergovernmental Organizations Council of Europe Ms Olga KOSTENKO Co-Secretary to Committee on Culture and Education Tel (333) Fax : (333) olga.kostenko@coe.int Non-Governmental Organizations ICA Mr Leopold AUER Gsterreichisches Staatsarchiv, Haus., Hof-und Staatsarchiv, Minoritenplatz WIEN, Austria Fax : (43 I) Te1:(43 1) E.mail : AUER@OESTA.GV.AT ICOM Mr Vincent NEGRI 21 rue RenC Leynaud Lyon Tel : (334) (bureau), (334) (domicile) Fax : (334) wanadoo.fr

8 4 III. SECRETARIAT M. Mounir BOUCHENAKI Assistant Director-General for Culture a-i. Mme Lyndel V. PROTT Directeur Unit6 des normes intemationales Division du patrimoine culture1 M. Jan HLADlX SpCcialiste du programme Unit6 des normes intemationales Division du patrimoine culture1 Melle Miriam BREWKA Expert associt Unit6 des normes intemationales Division du patrimoine culture1 M. Edouard PLANCHE Expert associt Unit6 des normes intemationales Division du patrimoine culture1 Melle Annie-Christine COUTURIER Secrktaire Unit6 des normes intemationales Division du patrimoine culture1

9 ANNEX II PREAMBLE GUIDELINES RELATING TO CULTURAL PROPERTY DISPLACED DURING OR AS A RESULT OF THE SECOND WORLD WAR Noting with concern that a large number of disputes concerning cultural property displaced during the Second World War has not been settled; Acknowledging that such disputes hamper political and cultural co-operation among the States concerned; Acknowledging that only some countries have adopted national legislation on this problem; Calls upon every State concerned to enter into intensive negotiations on the reciprocal repatriation (the return) of cultural property displaced, on the basis of the following principles: I

10 ANNEX III CLT-2000/CONF/60 1 /WP. 10 Paris, 3 1 May 2000 Original : English Proposed Principles for the Settlement of disputes relating to cultural property displaced as a result of the Second World War Principle 9 Alternative formulation (Professor Boguslavsky) There is an international legal obligation for compensatory restitution consisting in obligation of one State to compensate another State for the material damage inflicted during the war on the cultural objects of another State whether by handing over to the damaged State objects of the same kind (or by their acquisition by the damaged State in its own favour) as those that were plundered and illegally removed by one State from the territory of the damaged State. I