Immunity for Artworks on Loan? A Review of International Customary Law and Municipal Anti-Seizure Statutes in Light of the Liechtenstein Litigation
Weller, Matthias, Vanderbilt Journal of Transnational Law
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
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.
II. 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. …