409 / 464
395
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).