CYIL 2015

THE CZECHǧAUSTRIAN DECLARATION ON JURISDICTIONAL IMMUNITIES … subparagraph (c): …(e) property forming part of an exhibition of objects of scientific, cultural or historical interest and not placed or intended to be placed on sale.” Although the Austrian court of the first instance did not apply the applicable rules of international law, the appeal court (the Land Court for civil law matters in Vienna) reversed the first instance decision on 25 October 2011. This positive outcome – especially in comparison to the above-mentioned misapplication of international law by the Italian courts – would probably not be achieved without a legal opinion ( amicus curiae letter) submitted to this court by the Austrian Federal Ministry for European and International Affairs. Except for the issue of non-enforceability of the arbitral award under the Czech law, the court confirmed that State-owned cultural property on public display abroad is covered by State immunity. The court also noted that, according to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the States are responsible for the protection and administration of cultural property. Therefore, it is clear that providing such property for exhibitions abroad is a governmental, non-commercial activity. Finally, the court took into account Article 21(1)(e) of the UN Convention, which it considered to be a codification of customary international law. Thanks to this ruling, the paintings in question could return to the Czech Republic. After this affair was resolved, it was clear to both countries involved that, before the UN Convention enters into force, there will always be a certain level of legal uncertainty, as the argument of customary law-based immunity of State-owned cultural property might be hard to prove before a court. Furthermore, as the dispute between the Czech Republic and the Diag Human company was still far from being over at that time, it was very likely that this troublesome situation might happen again in the near future. In this respect, an “embargo” on all cross-border loans of State-owned cultural property objects was not an option for the Czech Republic and its broad and open art loan policy. The Czech traditional approach to this problem has been to negotiate unilateral guarantees given by the borrowing State, which has always been quite a difficult and time-consuming task. Fortunately, Austrian diplomacy offered a better solution and, in 2012, presented to the Czech Republic an idea of a legally non-binding declaration based on Articles 19 and 21 of the UN Convention that would constitute an opinio iuris with regard to the customary rules contained in these provisions. The Czech Foreign Ministry immediately embraced this idea and, at the same time, launched its lengthy internal process in order to ratify the UN Convention as soon as possible (the instrument of ratification was deposited with the UN Secretariat, together with the instruments of acceptance to the Kampala Amendments, on 12 March 2015).

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