CYIL 2015

396

PETR VÁLEK

CYIL 6 ȍ2015Ȏ

At the beginning of 2013 the Czech Republic and Austria prepared the first draft

of the declaration.

Then they presented the draft to other EUMember States within

COJUR and invited them to submit their comments and proposals of changes. In

parallel, they informed the representatives of the Council of Europe members in

March 2013 on this initiative at the 45

meeting of CAHDI. Among many legal

issues that were discussed during the drafting process, perhaps the two most difficult

ones were the following: First, there were some doubts about the customary law

status of the UN Convention and the relevant provisions, in spite of the above-

mentioned ICJ judgment and solid support in practice among the major lending

and borrowing States in favor of these rules.

Second, the first draft contained a

unequivocal commitment to present the declaration to a competent court, should a

case arise. Nevertheless, this text was dropped due to different domestic legal systems

of the EU Member States that do not always allow the Government to present such

a document (or even an

amicus curiae

brief ) to a court.

After circulating the draft several times, the Czech Republic and Austria made a

conclusion that further negotiations would not bring any additional improvements

to the text of declaration and prepared the document for signature under the title

“Declaration on Jurisdictional Immunities of State-Owned Cultural Property”

(hereinafter the “Declaration”). On 18 November 2013 the Czech Minister of

Foreign Affairs, Mr. Jan Kohout, and the Austrian Federal Minister for European and

International Affairs, Mr. Michael Spindelegger, signed the Declaration in Brussels.

The text of the Declaration reads as follows:

“We, the undersigned,

Desirous to strengthen international cooperation in the field of culture;

Recognizing that the exchange of cultural property significantly contributes to

the mutual understanding of nations;

Resolved to promote the mobility of State-owned cultural property through

temporary cross-border loans for public display;

Aware of the need to reaffirm the international legal framework applicable to

State-owned cultural property on public display in another State on the basis of the

customary international law on State immunity, as codified in the United Nations

Convention on Jurisdictional Immunities of States and Their Property of 2004

(hereinafter the “Convention”);

Jointly declare the following:

In accordance with customary international law as codified in the Convention

The author would like to also acknowledge Professor Hafner for his involvement in the drafting of the

Declaration.

N. van Woudenberg, State Immunity and Cultural Objects on Loan, Leiden 2012, pp. 429-430.