Cultural Heritage and State Immunity

The intersection of cultural heritage and state immunity raises intriguing questions of international law and policy. Indeed, as applied to cultural heritage property, state immunity may yield contradictory outcomes. On the one hand, it may bar access to justice by the rightful owners of cultural property suing foreign states for restitution and cognate relief, thereby potentially interfering with the global fight against the illicit trafficking of such property. On the other hand, it may advance the international community’s interest in transnational cultural cooperation and mobility of art collections, whenever it shields art objects from reparation claims by victims of state breaches of contractual obligations or violations of human rights which are unrelated to property ownership and restitution issues. Since my earlier contribution on the law and practice concerning cultural heritage and state immunity (‘Sovereign Immunity and the Enforcement of International Cultural Property Law’, in F Francioni & J Gordley (eds), Enforcing International Cultural Heritage Law (OUP 2013) 79), a variety of developments have occurred. Law-making processes have been undertaken under the auspices of the Council of Europe and the International Law Association, as well as by a number of states. Several high-profile judicial disputes challenging state immunity for cultural property are still pending and others have arisen, particularly in the context of the United States Nazi-looted art litigation. This chapter reviews such developments and seeks to identify trends and prospects. Against that backdrop, it discusses the boundaries of customary law in this area, especially as concerns the existence and scope of a customary rule of immunity from seizure for artworks on loan.