U N E S C O EXPERT MEETING ON THE SETTLEMENT OF DISPUTES CONCERNING CULTURAL OBJECTS DISPLACED IN RELATION TO THE SECOND WORLD WAR

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1 CLT-2002/CONF/602/3 Paris, 24 February 2003 Original: English U N E S C O EXPERT MEETING ON THE SETTLEMENT OF DISPUTES CONCERNING CULTURAL OBJECTS DISPLACED IN RELATION TO THE SECOND WORLD WAR A. HISTORY/ANTECEDENTS (Paris, 3 6 December 2002) SECRETARIAT S FINAL REPORT 1. Following Recommendation 7 adopted by 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") (Paris, January 1999), inviting the Director-General to convene a working group of experts (English original version of Recommendation 7) in the field of cultural property displaced during the Second World War, the Secretariat convened this meeting on the settlement of disputes concerning such cultural property. The experts were invited in their personal capacity. A previous such meeting that took place in Paris from 29 to 31 May 2000, considered eight principles for the settlement of such disputes originally proposed by Dr. Lyndel V. Prott, the then Director of the International Standards Unit of the Division of Cultural Heritage of UNESCO, 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". 2. As the May 2000 Paris 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. This possibility did not, however, materialize. 3. During the eleventh session of the Intergovernmental Committee (Phnom Penh, Cambodia, 6 9 March 2001) the Chairperson of the May 2000 meeting reported to the Committee on the progress made in the consideration of principles designed as guidance for States negotiating on issues related to cultural property displaced during the Second World War. It was also pointed out that a second meeting of experts was planned for 2002 in order to complete this work.

2 2 B. THE DECEMBER 2002 PARIS EXPERT MEETING 4. The second expert meeting was held in Paris from 3 to 6 December Ten experts invited in their personal capacity participated in the meeting. The meeting was also attended by observers representing the Council of Europe, the International Council on Archives, the International Council of Museums and electoral groups I and V(b), respectively. A copy of the list of participants is attached in Annex I. 5. On behalf of the Director-General, Mr Guido Carducci, Chief of the International Standards Section of the Division of Cultural Heritage, opened the meeting. In his presentation he briefly referred to the previous development (e. g. Recommendation No. 7 of the tenth session of the Intergovernmental Committee and the results of the May 2000 Paris expert meeting), stressed the importance of the principles in relation to the conduct of bilateral or multilateral negotiations and subsequent conclusion of treaties on this issue. He concluded by mentioning a subsequent development in this field the October 2000 Vilnius International Forum on Holocaust Era Looted Cultural Assets. 6. In conformity with the provisional agenda, the meeting elected by consensus Professor Jiří Toman (Switzerland/the Czech Republic) as Chairperson and Professor Sompong Sucharitkul (Thailand) as Rapporteur. The meeting then proceeded to the adoption of the Rules of Procedure and the Agenda, both adopted without any change. C. MAIN OBJECTIVES OF THE MEETING 7. The Secretariat then provided the participants and observers with a brief statement on the origin and purpose of the Principles. In particular, it was stressed that the proposed Principles are intended to provide general guidance for bilateral or multilateral interstate negotiations in order to facilitate conclusion of agreements, as well as a potential basis for case-law developments. Because of their nature, the Principles are clearly not aimed at directly amending, abrogating or replacing existing international treaties on this issue. Member States are obviously free to embody all, some or none of the Principles in legally binding treaties. D. SUBJECT-MATTER 8. The subject-matter of the Principles is highly complex from several points of view: historical, socio-cultural and legal. As to their legal aspect, the Principles raise issues of both public and private (domestic and international) law. However, as such they do not cover specifically the issue of ownership: it was felt that ownership of cultural objects displaced during the Second World War would be too difficult to be determined nowadays on a general basis and within the elaboration of these Principles. Additionally, the existence of different legal traditions and concepts of ownership convinced the participants not to deal directly with ownership in these Principles. Therefore, at least in principle, the issue of ownership should not be ex se an obstacle to restitution according to these Principles and, from a more technical point of view, is assumed to be ruled by the applicable law in time (inter-temporal conflict of laws) and space (private international law). This position is reflected in the terminology adopted, for instance, in Principle IX where the term transmit was chosen not to imply necessarily the transfer of ownership.

3 3 E. THE WORK OF THE MEETING 9. The Secretariat s statement was followed by the presentation of six national reports, one general presentation and the experience of the International Council on Archives attending the meeting as observer. 10. As not all participants and observers took part in the May 2000 Paris meeting, the Secretariat reintroduced the original version of the Principles as presented at that meeting with a brief commentary on the origin thereof. The participants and observers then proceeded to a thorough principle-by-principle discussion. 11. The meeting resulted in a substantial redraft of the Principles. Principles VIII, IX, XI, XII and XIII are based on the principles originally proposed by Dr. Prott at the 1995 New York symposium. 12. The Principles, together with a brief commentary by the Secretariat of their essential points, and separate opinions of the experts, are provided below. Mr Hailemariam and Professor Kono provided their written reservations/dissenting opinions after the meeting, which are copied in toto in Annex II and Annex III, respectively. 13. The degree of accuracy in drafting is crucial for legal texts: indeed, while a low degree would make the Principles too general, vague and inoperative, a too high degree may be seen as too legalistic. This latter view was taken by an expert (cf. Annex III), while it was not shared by the majority of participants as reflected in the rather detailed drafting style of the Principles. F. SECRETARIAT S COMMENTARY OF THE PRINCIPLES (i) The Preamble PRINCIPLES RELATING TO CULTURAL OBJECTS DISPLACED IN RELATION TO THE SECOND WORLD WAR PREAMBLE Noting with appreciation the growing number of voluntary returns of cultural objects displaced in relation to the Second World War, and that such voluntary returns should be further encouraged; Noting with concern, nevertheless, that a number of issues related to cultural objects displaced in relation to the Second World War has not been settled; Acknowledging that only some countries have adopted national legislation to regulate or solve these issues; Encouraging States to develop national processes to implement the following Principles, particularly as they relate to alternative dispute resolution mechanisms for resolving these issues;

4 4 Calls upon every State concerned to enter into intensive negotiations on the reciprocal return of cultural objects displaced in relation to the Second World War, on the basis of the following Principles. Though brief the Preamble sets forth clearly the main philosophy and objectives of the Principles: non-binding in nature, they serve as inspiration for future negotiations and alternative dispute resolution tools, or out-of-court settlement or third-party tools, for the yet numerous unsettled cases of cultural objects displaced in relation to the Second World War. The importance of voluntary return of these objects is also stressed: though increasing in number, voluntary returns are still not very numerous and deserve to be encouraged as a peaceful, rapid and spontaneous solution to these complex issues. PRINCIPLE I Scope of Application : These Principles constitute recommendations aimed at facilitating the resolution of issues related to cultural objects, as defined in Article 1 of the 1970 UNESCO Convention, that have been removed from, or the possession of which has been lost within a territory during or in connection with hostilities or occupation related to the Second World War, even if such occupation was total or partial or had met with no armed resistance. Principle I is a cornerstone of the Principles. First, it stresses what the participants reiterated on a number of occasions, i.e. the non-legally binding, soft-law and recommendatory character of the Principles. They are simple guidelines aimed at facilitating mainly bilateral and multilateral negotiations, and do not modify ex se treaties in force on the same subject. Secondly, this Principle provides the scope of the application of the Principles both : (i) ratione materiae : applicability of the Principles to cultural objects either removed or the possession of which has been lost within a territory. The term territory was preferred to country in light of the territorial changes following the Second World War. The expression cultural objects was adopted, instead of cultural property, in order to follow the less conceptual and less legal terminology ( objects rather than property ) already adopted in the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects ( the UNIDROIT Convention ). However, the categories of these objects are those common to the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property ( the 1970 Convention ) (Article 1) and the UNIDROIT Convention (Article 2 and Annex); (ii) ratione temporis : such removal or loss of possession had to take place in connection with hostilities or occupation related to the Second World War. This language is aimed to simplify the scope of application ratione temporis and loci of the Principles and avoid possibly endless discussions as to the dates of the Second World War for the different countries concerned. When analysing the question of removal of cultural objects, the participants questioned the appropriateness of the use of the term taken in this context. Two new

5 5 notions were used instead - loss of possession and removal - in order to widen the scope of application of the Principles. The part even if such occupation was total or partial or had met with no armed resistance, was taken expressis verbis from Article 18(2) of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict ( the Hague Convention ) and added to ensure that the Principles cover also cases of total or partial occupation and lack of armed resistance. PRINCIPLE II Meaning of loss of possession or removal : These Principles apply to any loss of possession or removal where there are reasonable grounds to conclude that the cultural objects concerned : (i) were openly looted or plundered; or (ii) were otherwise appropriated in a manner contrary to the law in force in the territory where they were located at the time, even if appropriated in a manner in conformity with a law or a judicial or administrative measure, the recognition of which would be offensive to the principles of humanity and dictates of public conscience; or (iii) were transferred pursuant to a transaction apparently but not actually legal or vitiated inter alia by oppression, fraud, duress, undue influence or pressure, mistake, vulnerability, disability or disadvantage, whether these were inflicted by direct human agency or by external circumstance, and even when the transaction purports to have been voluntarily effected; or (iv) had otherwise left the possession of a person or an entity in circumstances deemed grossly offensive. The importance of this Principle is self-explanatory. It aims at covering the variety of events and circumstances having caused loss of possession or removal of cultural objects within the time period concerned. This is why this Principle sets forth four different sets of events and circumstances: (i) acts of open looting and plunder: these self-evident events were already codified as illicit acts mainly under the 1863 Lieber Code and the Regulations Respecting the Laws and Customs of War on Land to the 1899 Convention (II) with Respect to the Laws and Customs of War on Land and the 1907 Convention (IV) Respecting the Laws and Customs of War on Land; (ii) appropriation of cultural objects in conformity with a law or a judicial or administrative measure the recognition of which would be offensive to the principles of humanity and dictates of public conscience: this provision, inspired by Article 1(2) of the 1977 Additional Protocol I to the four Geneva Conventions for the protection of war victims and embodying the spirit of the Martens clause, acknowledges the variety of legislations as well as judicial or administrative measures discriminating on racial grounds during those years and reacts with a view to depriving them of their legal effects for cases where the Principles apply; (iii) transfer of cultural objects pursuant to a transaction apparently but either not actually legal or vitiated : this provision is inspired by the 1943 Declaration of London subsequently implemented, among other States, by France, the United Kingdom, the United States and the then USSR in their respective zones of occupation. It is broadly drafted and clearly aims at covering numerous situations of apparent legality of transfer of cultural objects; and

6 6 (iv) removal of objects in circumstances deemed grossly offensive : this is a final and closing provision which covers particularly offensive conditions of transaction not covered by the previous paragraph. PRINCIPLE III Obligations of the State of Location or Depositary State : States within whose territory the cultural objects are currently located for whatever reason or pursuant to their deposit made by another State for the purpose of protecting them against the dangers linked to the events referred to in Principle I, owe an obligation to secure their return, and to prohibit their export until the return, to the competent authorities of the territory from which they were removed or where their possession was lost, whether the objects were claimed or not. This Principle introduces two new notions a State of location and a depositary State. The former is a State where cultural objects for the purpose of the present Principles are currently located, while the latter designates a State where the objects were deposited for the purpose of protecting them against the dangers linked to hostilities or occupation related to the Second World War. Obviously, while a depositary State which is still depositary of the objects today is, by definition, at the same time also a State of location, the latter is not necessarily a depositary State. Principle III provides for two principal obligations of both States: (i) to secure the return of cultural objects concerned: this obligation to return is one of the main contributions of the Principles. Indeed, for the category of cultural objects following under these Principles (see Principle I), if this provision (ex se of a soft law nature) is implemented, the resulting obligation to return rejects the traditional obstacles to return known in ordinary private international law practice and litigation. Such obstacles arise as soon as the applicable law (usually the lex situs for original or not derivative acquisitions) deems it appropriate to grant ownership to the good faith purchaser, as is often the case in the Civil Law tradition. Furthermore, this obligation to secure return goes beyond the physical return of the objects if in the possession of the State of location (or depositary State) and covers all necessary legal and administrative measures aimed at ensuring their return in other circumstances, such as purchase or even confiscation or similar measures where appropriate; (ii) to prohibit their export until the return to the competent authorities of the territory from which they were removed or where their possession was lost: this duty consists mainly in administrative and customs measures such as the refusal to issue an export certificate or the prohibition of exportation. The provision on the obligation of the depositary State to return cultural objects is inspired by Article II(5) of the 1954 Protocol and is aimed at preventing cases such as the Polish-Canadian dispute concerning the Polish art treasures evacuated to Canada in 1940 to protect them against the danger of the Second World War and finally returned to Poland in The return of cultural objects is obligatory regardless of the submission of an official request by the authorities of the territory from which they were removed or where their possession was lost. The importance of this provision is quite clear. The provision sets forth an ex officio duty to return outside the ordinary contentious judicial framework of litigation.

7 7 It also prevents the State of location (the depositary State) from claiming that it is not obliged to return cultural objects in question because the authorities of the territory of their removal or dispossession have not, for any reason, submitted the claim for their return, thus tacitly waiving their right to the objects. The same logic inspires Principle XIII: a return claim is not only not necessary, but it is also not subject to any time limit. PRINCIPLE IV Obligations of the Responsible State : A State that was responsible for the loss of possession or removal of cultural objects referred to in Principle I shall seek out, and acquire if necessary, these objects and return them to the competent authorities of the territory from which they were removed or within which their possession was lost. The responsible State should also provide to these competent authorities for the benefit and onward transmission to the person or entity that lost possession, or the successor to that person or entity, an appropriate sum to represent the value of their use or possession for the relevant period and the cost of their attempted retrieval. In any event, this sum is meant to be moderate and to facilitate the return of cultural objects and not for punitive or speculative purposes. In case the responsible State needs to acquire the objects from a good faith purchaser to return them, this State shall indemnify this purchaser. This Principle introduces the basic notion of the responsible State a State responsible for the loss of possession or removal of the cultural objects in question. If the responsible State is also the State of location at the time the Principles are applied, then this State is also subject to Principle III. If the responsible State is not also the State of location, while Principle VI defines the duties of the former to the latter, Principle IV sets two principal obligations of the responsible State: (i) to seek out, acquire if necessary, and return the objects in question: during the debates, several options were discussed as to the possibility of discharging the obligation of the responsible State. References were made to the work of the United Nations International Law Commission on the codification of rules of State responsibility as well as to compensation. However, the obligatory return as primary obligation of the responsible State was seen as prevailing. At the national level, this obligation implies taking all the necessary legal and administrative measures on the territory of the responsible State to search for, acquire and return objects. In order to take into account the market interest, the provision includes the obligation to indemnify a good faith purchaser, as already foreseen under Article I(4) of the 1954 Protocol. As the necessary measures may have only a territorial effect, this obligation may also imply co-operation with the State of location for the purpose of searching, acquiring and returning the objects; (ii) to transmit, through the relevant authorities, to the person (entity) that lost possession or his/her/its successor an appropriate sum representing the value of their use or possession for the relevant period and the cost of their attempted retrieval. As clearly stated, such sum is meant to be moderate and not to represent punitive damages or serve speculative purposes, sharing therefore the similar philosophy embodied in the terminologies of just compensation under Article 7(b)(ii) of the 1970 Convention or - 25 years later - of fair and reasonable compensation under Articles 4(1) and 6(1) of the 1995 UNIDROIT Convention.

8 8 PRINCIPLE V Responsibility of more than one State : Where more than one State is responsible for the same or successive loss(es) of possession or removal(s) of the same objects each State is jointly and severally liable for the purposes of these Principles. Such liability is not joint and several where the internationally wrongful acts of these States are manifestly not of the same gravity. Several events having caused loss of possession or removal of cultural property under these Principles were the result of the acts of more than one State. This Principle settles this issue by establishing a joint and several responsibility for the same internationally wrongful acts resulting in the loss(es) of possession or removal(s) of cultural objects. Therefore, the responsibility of each State may be invoked in relation to such acts. From a more general point of view, this Principle increases the number of responsible States and, indirectly, facilitates the return of cultural objects. In some other cases more than one State may be concerned but their acts are manifestly not of a comparable gravity. In order to avoid that the above-mentioned rule apply indistinctively to both situations, some flexibility has been added in the second part of this Principle: joint and several liability is excluded in cases where the internationally wrongful acts of these States are manifestly not of the same gravity. PRINCIPLE VI Obligations of the Responsible State to the State of Location : Where the State of location is not also the responsible State, the State of location may discharge the obligation referred to under Principle III by : a.) itself returning the objects, in which case the responsible State shall indemnify the State of location unless the latter rejects such indemnity; or b.) having first acquired the objects by means of financial resources previously supplied by the responsible State; or c.) meeting the following three cumulative requirements : i) calling on the responsible State to acquire and return them; ii) rendering the responsible State all reasonable assistance towards such acquisition and return; and iii) ensuring that the objects are in fact acquired for prompt return by the responsible State. In cases where the State of location is not the responsible State, the various obligations of the former under Principle III may be discharged in three ways: (i) direct return of the cultural objects : this mainly implies that the objects were in possession of the State of location and, as such, the State of location is entitled to be subsequently indemnified by the responsible State. As the return may also be felt as a spontaneous and moral act by the State of location irrespective of the existence and the responsibility of a responsible State, such an indemnity is not compulsory but may be declined by the State of location;

9 9 (ii) acquisition of the objects by financial means provided by the responsible State: this implies that the State of location had to acquire the objects in order to return them and that the financial means therefore were previously provided by the responsible State; and (iii) request to the responsible State to acquire and return the objects: as the objects are by definition, for the purposes of this Principle, outside the territory of the responsible State, this provision implies for the State of location to provide the responsible State all the reasonable (factual and legal) assistance necessary to secure the acquisition of the objects (through purchase, confiscation or other measure where appropriate) and their prompt return by the responsible State (through issuance of an export certificate or waiver of customs duties if necessary). PRINCIPLE VII Obligations of the Recipient State : The competent authorities of the territory from which they were removed or where their possession was lost, and to which the cultural objects have been returned, shall exercise due diligence to seek out and identify the person or the entity which was entitled to the cultural objects at the time the loss of possession occurred, or the successor to that person or entity, and to return these objects to such a person or entity in accordance with the law of the recipient State. Once the objects have been returned to the recipient State, Principle VII provides its national authorities with the obligation to exercise due diligence to seek out and identify the person (entity) entitled to the objects, at the time the loss of possession occurred or his/her/its successor. After a careful debate considering different options, it was decided by the majority of experts to make the subsequent return obligation in accordance with the law of the recipient State. PRINCIPLE VIII Successive displacements : Where there have been successive displacements, the cultural objects will be returned to the competent authorities of the territory where they were located immediately before the first removal or loss of possession as referred to in Principle I. Part of the cultural objects covered by these Principles has been displaced several times and from different (national) territories. For these not uncommon situations, Principle VIII provides for the return of these cultural objects to the competent authorities of the territory where they were located immediately before the first removal or loss of possession. The key element is therefore the first removal or loss of possession: only the competent authorities of the territory concerned are the beneficiary of the duty to return. PRINCIPLE IX Destroyed cultural objects : Where there are reasonable grounds to consider that cultural objects referred to in Principle I and of a particular cultural importance for the requesting State have been destroyed and therefore can not be returned in conformity with the general rule of Principles III and IV, a State that is responsible for the loss of possession of, or

10 10 removal of those cultural objects from a territory, shall transmit, by acquiring them if necessary, to the competent authorities of such territory, equivalent cultural objects that have the closest attainable link to those that were destroyed or so considered on reasonable grounds and that are selected in consultation with those authorities. No State should be required under this Principle to transmit any cultural object having a closer cultural link to this requested State than to the requesting State. A great number of cultural objects has been destroyed or has disappeared during the Second World War. Principle IX deals with cultural objects supposed to be returned under Principles III and IV but that are destroyed or considered as such on reasonable grounds. The latter terminology reflects a clear need of flexibility to cover those numerous objects which are still today considered as disappeared, since no concrete proof of destruction is available. The scope of this Principle is narrower than the scope of Principle I: it covers only cultural objects of a particular cultural importance for the requesting State. Beyond the ideal notion of universalist culture, each State has its own criteria to assess, at least for legal purposes, what culture is. This is reflected in the Principle: since the importance of the objects is to be assessed by the requesting State. As long as the objects are deemed to have been destroyed, falling therefore under Principle IX and not Principles III and IV (return), the responsible State is required to transmit, and to acquire, if necessary (following the logic of Principles III and IV) cultural objects having the closest attainable links to the destroyed objects after having consulted the authorities of the territory concerned on the selection of these replacement objects. This consultation duty is self-explanatory as it would make no sense to oblige the responsible State to transmit or to acquire, if necessary (at a price which may be important), objects which are of no interest to the authorities of the territory concerned. However, the spirit of the provision is not to be interpreted to the other extreme, i.e. to allow the requesting State to choose as replacement objects any object(s) of their choice: a clear-cut bottom line is drawn by the safety clause in the Principle that exclude from the obligation of return for the responsible State objects having a closer cultural link to this State than to the requesting State. Precedents of the restitution by replacement are known in public international law. For instance, Article 247 of the Treaty of Versailles requiring Germany to provide the University of Louvain (Belgium) with manuscripts, incunabula, maps, and collectibles of the same number, and similar type as, and value to, those destroyed by Germany during the burning of the library of Louvain during the First World War. PRINCIPLE X Alternative compensation : Where cultural objects referred to in Principle I are not found or where substitutive cultural objects referred to in Principle IX are not found or selected, the responsible State shall owe to the competent authorities of the territory from which the destroyed cultural objects were removed or where their possession was lost, an appropriate compensation, either in monetary terms or by contributing to the cultural development, to be decided in consultation with these authorities.

11 11 In cases where the cultural objects in question are either not found and therefore not subject to return (Principles III and IV) or are destroyed or considered as such and their replacement was not found or not agreed upon after consultation (Principle IX), the responsible State is required to provide an appropriate compensation. It may be either in monetary compensation or by contributing to cultural development by assisting the authorities from whose territories the objects were removed or where the possession was lost. This may consist, for instance, in providing training to cultural heritage specialists, facilitating cooperation among cultural institutions or assisting in the restoration of cultural monuments and objects. In both cases, the responsible State must consult with the relevant authorities concerned. While it is not specified in this Principle, it may be argued that by analogy with Principle IV this monetary compensation shall be deemed to be moderate and not punitive or for speculative purposes. PRINCIPLE XI Documentation : Cultural objects being returned are to be accompanied by the relevant scientific and technical documentation where available. Probably the least debated Principle during the meeting of experts, this provision clearly aims at providing the recipient authorities with all relevant documentation, in order to ensure continuity in the study of restoration or conservation measures applied to the objects. It corresponds to established ethical standards for museums such as the ICOM Code of Ethics for Museums. PRINCIPLE XII Exclusion of war reparations : Cultural objects referred to in Principle I, shall never be retained as war reparations. Though this rule is already codified in international law, i.e. Article I(3) of the 1954 Protocol, it is of fundamental importance as it excludes submission of cultural objects to the regime of war reparations. Since 1954 in international treaty law, and currently at the soft law level through the Principles, such an exclusion is a clear recognition of the specificity of cultural objects. PRINCIPLE XIII Time limit : No time limits may be set in relation to the enforcement of the obligations established by these Principles.

12 12 Following Principle XII, a further important recognition of the specificity of cultural objects is clearly implied in Principle XIII : cultural objects are not subject to the traditional statutes of limitation applicable in private law for ordinary property and objects. Such a clear position in favour of return against any illicit retention of cultural objects was adopted by the majority of participants. Not being subject to the diversity of statutes of limitation known in comparative law, this position also has the advantage of being simple and uniform. Unlike private law and its traditional statutes of limitation, there are some precedents in public international law related to the return or restitution of cultural objects excluding the applicability of statutes such as the restitution of the Heidelberg manuscripts 1. In addition, at the multilateral treaty level it may noted that the proposal to include the provision on the statutes of limitation in the 1954 Protocol made by Norway during the 1954 Hague Intergovernmental Conference 2 was not accepted 3. Thus, it may be argued that at least the drafters of the 1954 Protocol and the international community they represented, were opposed to the application of statutes of limitation to the return or restitution of cultural objects. 1 S. E. Nahlik, La protection internationale des biens culturels en cas de conflit armé, Recueil des cours de l Académie de droit international (The Hague), Vol. 120, II, 1967, p Records of the Conference convened by the United Nations Educational, Scientific and Cultural Organization held at The Hague from 21 April to 14 May 1954, Staatsdrukkerij- en Uitgeverijbedrijf, The Hague, 1961, p Records, Ibid, p. 256

13 ANNEX I CLT-2002/CONF/602/3 Paris, February 2003 Original : English/French UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL ORGANIZATION EXPERT MEETING ON THE SETTLEMENT OF DISPUTES CONCERNING CULTURAL HERITAGE DISPLACED IN RELATION TO THE SECOND WORLD WAR (Paris, 3-6 December 2002) REUNION D EXPERTS SUR LE REGLEMENT DES DIFFERENDS CONCERNANT LES BIENS CULTURELS DEPLACES EN RELATION AVEC LA SECONDE GUERRE MONDIALE (Paris, 3-6 décembre 2002) List of participants/liste des participants I. PARTICIPANTS Prof. Eric DAVID Faculté de Droit Campus du Solbosch ULBCP 137, avenue F. D. Roosevelt Bruxelles (Belgique) Tel: (322) Fax: (322) edavid@pop.ulb.ac.be Prof. Erik FRANCKX Vrije Universiteit Brussel Faculty of Law Center of International Law Pleilaan Brussels Belgium Tel : (322) Fax : (322) franckx@pandora.be Prof. Raymond GOY 46, avenue de Sceaux VERSAILLES France

14 2 Tel: Mr Zaude HAILEMARIAM Saimagatan 11, Kista, Stockholm Sweden Tel : (46) (0) /(46) zaude.hm@chello.se Prof. Toshiyuki KONO Faculty of Law, Kyushu Univ. 23 Fukuoka Japan Tel: (8192) /3168 Fax: (8192) konoto@law.kyushu-u.ac.jp Prof. Wojciech KOWALSKI Ambassador ad personam Senior Minister s Counsellor Ministry of Foreign Affairs Al. J. Ch. Szucha Warsaw Poland Tel: (4822) Fax: (4822) Prof. Norman PALMER Faculty of Law University College London 4 8 Ensleight Gardens LONDON WC1H OEG United Kingdom Tel: (44207) Fax: (44207) n.palmer@ucl.ac.uk Prof. Sompong SUCHARITKUL Associate Dean and Distinguished Professor of International and Comparative Law Golden Gate University 536 Mission Street San Francisco CA United States of America

15 3 Tel: (1415) Fax: (1415) Prof. Jiří TOMAN Professor of Law School of Law Santa Clara University 500 El Camino Real Santa Clara California United States of America Tel: (1408) Fax: (1408) Dr. Stephen TURNER Lehrstuhl für Staats-und Völkerrecht Rechts-und Wirstchaftswissenschaftliche Fakultät Bau 16 Im Stadwald SAARBRÜCKEN Germany Tel: (49681) Fax: (49681) II. II(i) OBSERVERS/OBSERVATEURS Member States Electoral group I Dr. Günter RAUER Head of Subdivision Subdivision International Protection and Repatriation of Cultural Property Federal Foreign Office, Div Werderscher Markt BERLIN Germany Tel : (4930) Fax : (4930) @auswaertiges-amt.de Electoral group V(b) Dr. Mohamed Sameh AMR Deputy Permanent Delegate Permanent Delegation of Egypt to UNESCO

16 4 UNESCO House Tel: (331) Fax: (331) II(ii) Intergovernmental organizations Council of Europe Mr Christopher Grayson Head of Secretariat Culture, Science and Education Parliamentary Assembly Council of Europe F Strasbourg Cedex Tel: (333) Fax: (333) II (iii) Non-governmental organizations ICA Ms Perrine CANAVAGGIO CITRA Secretary/ Secrétaire de la CITRA International Council on Archives 60 rue des Francs-Bourgeois PARIS France Tel: (33.1) Fax: (33.1) ICOM M. Vincent NEGRI 6, rue des Capucins Lyon Tel: Fax: III. SECRETARIAT M. Guido CARDUCCI Chef Section des normes internationales Division du patrimoine culturel Tel : (33.1) Fax : (33.1) g.carducci@unesco.org

17 5 M. Jan HLADÍK Spécialiste du programme Section des normes internationales Division du patrimoine culturel Tel : Fax : j.hladik@unesco.org Mme Rochelle ROCA-HACHEM Spécialiste du programme Section des normes internationales Division du patrimoine culturel Tel : (33.1) Fax : (33.1) r.roca-hachem@unesco.org Mlle Annie-Christine COUTURIER Secrétaire Section des normes internationales Division du patrimoine culturel Tel : (33.1) Fax : (33.1) a-c.couturier@unesco.org

18 ANNEX II Mr Hailemariam Reservations/Dissenting opinion Mr. Mounir Bouchenaki Assistant Director-General for Culture UNESCO Fax:+33 (0) Ref: CLT-2002/CONF/602.1WP RESERVATIONS of Mr Zaude Hailemariam. December 7, CLT-2002/CONF/602/3 Paris, January 2003 Original : English CONCERNING THE UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL ORGANIZATION S EXPERT MEETING ON THE SETTLEMENT DISPUTES CONCERING CULTURAL HERITAGE DISPLACED DURING THE SECOND WORLD WAR, PARIS, 3-7 December 2002, I submit, below, my reservations on the conclusions of the said meeting. Nonetheless, in all other respects, I am in agreement with the rest of the content of our report. 1. Article 1, Scope of Application, under the normal requirements of public international law, should read: These principles apply to cultural objects as defined in Article 1 of the UNESCO Convention that have been removed from a State, or whose possession has been lost within the said State, during the Second World War. All such objects should be returned or restituted to the State or Country of origin. If my suggestion in this respect, would be accepted, all other relevant Articles of our submission may easily be adjusted, in line with Article 1 as formulated above. Otherwise, my view will only be noted for the records. 2. In Article VII, Obligations of the Recipient State, the original concern for disappeared cultural objects, which had been properly included in the draft, has been deleted, against my protest. The said removal would do injustice to several small victim States, whose looted cultural objects have disappeared, even, in some cases, after they have been traced. 3. Copies of the UN Peace Treaty with Italy of 10 February 1947, were not distributed to the participants of the Expert Meeting, until I had to demand for them, and then only Article 37 thereof was made available, which provided: Within eighteen months from coming into force of the Present Treaty, Italy shall restore all works of art, religious objects, archives and objects of historical value belonging to Ethiopia or its nationals and removed from Ethiopia to Italy since October 3, A copy of this relevant and important Treaty of Peace, I suggest, would accompany our report, for the benefit of the Intergovernmental Committee that actually had authorized the holding of our meeting. Zaude Hailemariam

19 ANNEX III CLT-2002/CONF/602/3 Paris, January 2003 Original : English Professor Kono Reservations/Dissenting opinion As a general comment; To achieve the purposes stated in the first sentence of the Preamble ( voluntary returns should be further encouraged and Principle I ( facilitating the solution of issues ), all the principles are far too detailed and legalistic. Principle Ⅱ(ⅲ): mistake should be deleted. Principle Ⅳ: the second and the third sentences should be deleted. Taking the Principle XIII (no time limit) into consideration, the second sentence of this Principle will make voluntary returns and solutions more difficult. The third sentence will not help much in jurisdictions where compensatory damages and punitive damages are separate institutions. Principle Ⅹ: this principle should be deleted for the same reason as the deletion of the second sentence of Principle. This principle would make solutions more complicated and difficult.