International Discussion of the Russian Law
 


Before printing the text let us recall the developments over the last years which led to the actual Federal Law "On Cultural Values Removed to the U.S.S.R. as a Result of World War II and Located in the Territory of the Russian Federation". The history of this law actually began already in 1994, when the Russian Academy of Sciences, Institute for State and Law presented a "Report about the Legal Basis for the Solution of the Questions Concerning the Cultural Property Transferred to the USSR as a Result of World War II". In March 1995 the Council of Federation presented two drafts for a Russian law, principally based on this report. In May 1995 the Committee for Education, Culture and Science and the Committee for Foreign Affairs of the State Duma carried out a parliamentary hearing to consider these drafts. On June 7, 1995 the State Duma rejected both drafts at the first reading. In consequence they were revised and united. The new draft was presented in May 1996 in the State Duma and accepted on July 5, 1996. Unexpectedly it was the Council of Federation that rejected the law on July 17, 1996. The draft was referred to the mediation committee.

The final version of the law was accepted almost unanimously by the State Duma on February 5, 1997. The Council of Federation authorized the law which was consequently handed over to the President of the Russian Federation, B.N. Yeltsin. He exercised his veto on March 17, 1997 because the law from his point of view represented a unilateral decision and did not take into account standard norms of international law. The State Duma confirmed the law at the beginning of April 1997. The Council of Federation postponed its decision several times. Finally it was agreed to vote in written form in order to make sure the voting of all members. The law was accepted and referred again to President Yeltsin to sign it. The President refused to do so and sent the law back to the Council of Federation arguing that the formal procedure of the voting was not correct. In June the Council of Federation returned the law to President Yeltsin. It is expected that he will call on the Constitution Court.

Members of the Russian government, especially of the Ministry of Foreign Affairs and the Ministry of Culture, declared several times that they do not agree with the Federal Law although the background of these positions differs in many respects.


FEDERAL LAW ON CULTURAL VALUES REMOVED TO THE U.S.S.R. AS A RESULT OF WORLD WAR II AND LOCATED IN THE TERRITORY OF THE RUSSIAN FEDERATION

Please note that this is not an official translation. Although all the facts are transmitted correctly the formulations may not always be according to the standard of English law texts. We hope for your understanding.

The primary goals of this Federal Law are:

  • to protect the said values from misappropriation and prevent their illegal export from the Russian Federation as well as their unlawful transfer to whomsoever;
  • to develop the necessary legal base for the practical use of the said cultural values to a partial compensation for the damage suffered by the cultural property of the Russian Federation through the plunder and destruction of its cultural values by Germany and its war allies during the Second World War;
  • to safeguard the Russian Federation interests in settling disputes with foreign states concerning the said cultural values by consistently observing the principle of mutuality;
  • to provide an opportunity for first-hand acquaintance with the said cultural values to Russian Federation citizens and foreign nationals, including professionals in the fields of education, science and culture;
  • to create favourable conditions for continuing development of international co-operation in the fields of education, science, and culture.
Chapter I. General Regulations
Article 1.The Russian Federation Legislation on Cultural Values Removed to the U.S.S.R. as a Result of World War II and Located in the Territory of the Russian Federation

The Russian Federation legislation on cultural values removed to the U.S.S.R. as a result of World War II and located in the Russian Federation territory consists of this Federal Law and other statutory acts to be issued in correspondence with the Constitution of the Russian Federation and this Federal Law.

Article 2. International Legal and other Acts on which this Federal Law Is Based

This Federal Law is based on international legal and other acts passed during and after World War II, which remain in force with regard to the property relations that resulted as consequence of these acts: the Peace Treaties of 1947, statutory acts passed on the basis of the rights and supremacy of the occupation forces in Germany in 1945-49, the State Treaty on the Restoration of an Independent and Democratic Austria of May 15, 1955, the Treaty of Final Settlement with Germany of September 12, 1990, and also provisions of Article 107 of the United Nations Charter and the United Nations Declaration [London Declaration of the Allies] of January 5, 1943.

Article 3. Validity of this Federal Law with Respect to the Actual Possession of Cultural Values Removed to the U.S.S.R. as a Result of World War II and Located in the Russian Federation Territory

The present Federal Law applies to all cultural values removed to the USSR during World War II and located in the territory of the Russian Federation, irrespective of the actual possessor and the circumstances which led to this actual possession.

Article 4. Principal Terms Used in this Federal Law

For the purpose of this Federal Law the following principal terms will be used:

Restitution - the kind of international legal material obligation of a state which is guilty of an act of aggression or some other act contradicting international law to remove or lessen the material damage inflicted on another state by restoring the original condition, in particular by returning the property it has plundered and illegally taken out of the other state's territory;

Compensatory restitution - the kind of international legal material obligation of an aggressor state, applied wherever the enforcement of the said state's liability in form of a regular restitution is impossible, to compensate for the material damage inflicted on another state by handing over to the damaged state objects of the same kind (or by their acquisition by the damaged state in its own favor) as those that were plundered and illegally removed by the aggressor state from the territory of the damaged state;

Cultural values - any property of a religious or secular nature which has historic, artistic, scientific or any other cultural importance: works of art, books, manuscripts, incunabula, archival materials, components and fragments of architectural, historical and artistic monuments, as well as those of monumental art and other categories of objects specified in Article 7 of the Russian Federation Law "On the Export and Import of Cultural Values";

Removed cultural values - any cultural values that have been removed by way of compensatory restitution from the territories of Germany and its former war allies - Bulgaria, Hungary, Italy, Romania and Finland - to the territory of the U.S.S.R., pursuant to orders of the Soviet Army military command, the Soviet Military Administration in Germany or instructions of other competent bodies in the U.S.S.R. and that are now located in the territory of the Russian Federation;

Former enemy states - Germany and its Second World War allies: Bulgaria, Hungary, Italy, Romania and Finland;

Property of former enemy states - any property, whether state-owned, private, municipal, or owned by public and other organisations and associations, in former enemy states;

Affected states - any states (with the exception of the Russian Federation and the states specified in Article 7 of this Federal Law) whose territory was fully or partially occupied by the forces of former enemy states;

Property of an affected state - any property, whether state-owned, private, municipal, or owned by public and other organisations and associations, in affected states;

Cultural institutions - Russian state-owned (including departmental) and municipal museums, archives, libraries and other scientific, educational, entertaining and instructional institutions, enterprises and organisations which operate in the fields of education, science and culture.

Article 5. Composition of Removed Cultural Values

Removed cultural values, in terms of their former state affiliation, include:

  • cultural values which used to be the property of former enemy states;
  • cultural values which are, in the sense of Article 4 of this Federal Law, the property of affected states which have lost their right of property to these values due to their failure to file a restitution claim within the time period stipulated by the statutory acts referred to in Article 8 of this Federal Law; and
  • cultural values whose state affiliation has not been established (ownerless objects).

Chapter II. Removed Cultural Values and Rights of Ownership

Article 6. On the Right of Ownership of the Russian Federation to Removed Cultural Values

All cultural values located in the territory of the Russian Federation that were brought into the U.S.S.R. by way of exercise of its right to compensatory restitution - with the exception of those mentioned in Articles 7 and 8 of this Federal Law - are in the ownership of the Russian Federation and constitute federal property.

Article 7. On Guarantees for the Rights of ownership of the Republic of Byelorussia, the Latvian Republic, the Lithuanian Republic, the Republic of Moldavia, Ukraine and the Estonian Republic to Removed Cultural Values

  1. The provisions of Article 6 of this Federal Law do not apply to the rights of ownership of the Republic of Byelorussia, the Latvian Republic, the Lithuanian Republic, the Republic of Moldavia, Ukraine and the Estonian Republic to cultural objects which could have been found among the removed cultural values but which were plundered and taken away during World War II by Germany and (or) its war allies not from the territory of the Russian Soviet Federative Socialist Republic but from the territories of the Byelorussian Soviet Socialist Republic, the Latvian Soviet Socialist Republic, the Lithuanian Soviet Socialist Republic, the Moldavian Soviet Socialist Republic, the Ukrainian Soviet Socialist Republic and the Estonian Soviet Socialist Republic, and which were the national property of the said Union Republics and not that of other Union Republics which formed part of the U.S.S.R. within its boundaries of February 1, 1950.
  2. Cultural objects referred to in section 1 of this Article may be handed over to whomever is their rightful owner in the Republic of Belorussia, the Latvian Republic, the Lithuanian Republic, the Republic of Moldavia, Ukraine and the Estonian Republic subject to their compliance with section 4 of Article 18 of this Federal Law and their agreement to take the same approach, based on the principle of mutuality, to the cultural values of the Russian Federation that have been removed to the U.S.S.R. from former enemy states and are located in their territory.

Article 8. Removed Cultural Values Not Classified in Articles 6 and 7 of this Federal Law

Articles 6 and 7 of this Federal Law do not apply to the following cultural values:

  1. Cultural values for which an affected state presents evidence of having claimed their restitution before the expiry of the periods fixed by the statutory acts given below:
    • until March 15, 1948, with regard to Bulgaria (Article 22, section 7 of the Peace Treaty with Bulgaria), Hungary (Article 24, section 7 of the Peace Treaty with Hungary), Italy (Article 75, section 6 of the Peace Treaty with Italy), and Romania (Article 23, section 7 of the Peace Treaty with Romania);
    • until September 15, 1948, with regard to Finland (Article 25, section 2 of the Peace Treaty with Finland);
    • until February 1, 1950, with regard to Germany under the procedure established by the Council of Ministers of the U.S.S.R.
  2. Cultural values that were the property of religious organisations or private charities and which were used exclusively for religious or charitable aims and did not serve the interests of Militarism and (or) Fascism;
  3. Cultural values that used to belong to individuals who were deprived of these values because of their active fight against Nazism (Fascism), including their participation in national resistance movements against the occupation regimes of former enemy states and collaboration regimes, and (or) because of their race, religion or nationality.

Article 9. Terms of Transfer of Cultural Values Classified in Article 8 of this Federal Law to the Affected States

  1. Cultural values classified in subsections 1, 2 and 3 of Article 8 of this Federal Law for which an affected state files a restitution claim within 18 months of coming into force of this Federal Law and presents evidence that they are classified in the corresponding subsection (subsections) of Article 8 of this Federal Law and officially confirms that it has not received any lump compensation for these values from Germany or any other former enemy state, are to be handed over to the affected state on the terms provided in Article 18 of this Federal Law.
    The rights according to the first paragraph of subsection 1 of this Article may be exercised by any affected state which offers to the Russian Federation on the principle of mutuality no less favourable legal terms for the return of that part of the cultural values of the Russian Federation plundered by former enemy states that is, currently or in the future, in the territory of the respective state and for which the U.S.S.R. has made restitution claims.
  2. All removed cultural values classified in subsections 1, 2 and 3 of Article 8 of this Federal Law for which no affected state has filed a restitution claim within 18 months of the coming into force of this Federal Law nor presented evidence required under the said subsections of Article 8 of this Federal Law, become federal property.

Article 10. Terms of Transfer of Cultural Values Classified in Subsections 2 and 3 of Article 8 of this Federal Law to the Former Enemy States

  1. Cultural values classified in subsections 2 and 3 of Article 8 of this Federal Law for which a former enemy state will file a restitution claim within 18 months of the coming into force of this Federal Law and presents evidence that they are classified in subsection 2 and (or) subsection 3 of Article 8 of this Federal Law, may be handed over to whomever is their rightful owner in the claimant state on the terms provided in Article 18 of this Federal Law.
    The rights according to the first paragraph of subsection 1 of this Article may be exercised by any of the former enemy states that takes special legislative measures to meet its obligation to return, free of charge, to the Russian Federation its cultural values that were plundered and illegally removed by former enemy states and which are, currently or in the future, located in the territory of the respective former enemy state.
  2. All removed cultural values classified in subsections 2 and 3 of Article 8 of this Federal Law for which the respective former enemy state within 18 months of the coming into force of this Federal Law has neither filed a claim nor presented evidence as required under the said subsections of Article 8 of this Federal Law become federal property.

Article 11. Removed Cultural Values Not Liable to Transfer to Foreign States or International Organisations and (or) Export from the Russian Federation

Cultural values (archival and other materials, relics, and other values) that by virtue or their content or nature may serve the purposes of resurrection of the spirit of Militarism and (or) Nazism (Fascism) may not be handed over to foreign states or international organisations and (or) exported from the Russian Federation.

Article 12. Removed Cultural Values That are Family Relics

  1. Removed cultural values that are family relics (family archives, photographs, letters, decorations and awards, portraits of family members and their ancestors) which have become federal property according to Article 6 of the Federal Law, may for humanitarian reasons be handed over to properly authorised representatives of the families which used to be the owners of these values (relics) on the terms provided by Article 19 of this Federal Law.
  2. Section 1 of this Article does not extend to family relics of active figures in militarist and (or) Nazi (Fascist) regimes.

Article 13. Rights of Cultural Institutions in Regard to Removed Cultural Values

  1. Cultural institutions entrusted under the Civil Code of the Russian Federation with the day-to-day management of removed cultural values which are federal property according to Article 6 of this Federal Law exercise the rights of ownership, use and disposal of these cultural values according to the purpose of its activity and the purpose of the values. However, alienation and (or) transfer of these cultural values, except as provided in section 2 of this Article, may be effected only on the basis of a federal law and on the terms provided in this Federal Law.
  2. Duplicates of removed cultural values that are in the day-to-day management of cultural institutions, namely books, lithographs and other print publications, may be the subject of cultural exchange with foreign institutions and organisations provided these duplicates are of no interest to other cultural institutions in the Russian Federation.

Chapter III. International Co-Operation in the Matter of Identification and Restitution of Cultural Values of the Russian Federation

Article 14. Cultural Values Illegally Removed from the Russian Federation while Occupied by German Troops and its War Allies during World War II

The Russian Federation will co-operate with the states that exercised jointly with the U.S.S.R. supreme authority in Germany during its occupation - the United Kingdom of Great Britain and Northern Ireland, the United States of America, and the French Republic - with the aim of identifying and restituting to the ownership of the Russian Federation cultural values that might have been transferred to these states from the respective occupation zones of Germany.

The Russian Federation will also co-operate to the same ppurpose with any other state in which its cultural values may be located and which has signed, or acceded to, the United Nations Declaration [London Declaration of the Allies] of January 5, 1943 by concluding appropriate international agreements provided in Article 22 of this Federal Law.

Article 15. Terms of Exchange of Removed Cultural Values for Cultural Values of the Russian Federation Located outside the Russian Federation

Any exchange of removed cultural values for Russian Federation cultural values which are located outside the Russian Federation for which the Russian Federation has not filed a restitution claim is permissible only in case of equivalence of the exchange as determined by an authorised federal body concerned with the preservation of cultural values. The respective exchange will be legalised by an international treaty of the Russian Federation with due regard for the provisions of Chapter V of this Federal Law.

Chapter IV. Procedure of Enforcement of this Federal Law

Article 16. Authorised Federal Body for the Preservation of Cultural Values

  1. The control over the preservation of removed cultural values and the preparation of decisions on questions of rights of ownership to values will be entrusted to an authorised federal body for the preservation of cultural values (in the following referred to as the Federal Body).
  2. The Federal Body will be given the following functions:
    • to examine claims of foreign countries and applications of foreign nationals according to Article 18 and Article 19 of this Federal Law, to prepare decisions on such claims and to make decisions on such applications;
    • to apportion removed cultural values among cultural institutions with the aim of practically using these values as repair of the damage suffered by these cultural institutions as the result of the plunder and destruction of their property by the troops of former enemy states;
    • to resolve disputes between cultural institutions concerning the apportionment of cultural values among them;
    • to define the categories and storage conditions of removed cultural values not liable to transfer to foreign countries or international organisations and (or) to export from the Russian Federation;
    • to issue permits to cultural institutions to exercise their right according to Article 13 of this Federal Law to use duplicates of removed cultural values for cultural exchange with foreign institutions and organisations;
    • to exercise control over the compliance with the rules of foreign trade activity in regard to removed cultural values;
    • to present - jointly or in agreement with the Ministry of Foreign Affairs of the Russian Federation - to the government of the Russian Federation proposals for negotiations concerning removed cultural values;
    • to control the observance of this Federal Law.
  3. Decisions passed by the Federal Body in accord with its functions and authority as provided in this Article have binding force. Federal Body decisions may be appealed against according to regulations of the Russian Federation law. A decision which has not been properly appealed against within the time period established by Russian Federation legislation is considered to have come into force and may only be altered or revoked by another decision of the Federal Body.
  4. An Interministerial Council on Questions of Cultural Values Removed as a Result of World War II will be set up as a consulting panel. The head of the Federal Body is the chairman of the Interministerial Council on Questions of Cultural Values Removed as a Result of World War II.

Article 17. Applications and Claims of Cultural Institutions Concerning Removed Cultural Values and Restitution of their Property

A cultural institution may apply to the Federal Body for apportionment of certain cultural values from the removed cultural values in compensation for the damage suffered by this institution as the result of the plunder and (or) destruction of its property by the troops of former enemy states, as well as it may file claims because of disagreement with the apportionment of such property. The procedure of examination of these applications and claims is determined by a regulation to be approved of by the government of the Russian Federation.

A cultural institution may also appeal to the Federal Body for restitution of cultural values which used to be in its possession and which without foundation have been handed over to another cultural institution.

Article 18. Claims of Foreign States for Removed Cultural Values

  1. Claims for removed cultural values classified in subsections 1, 2 and 3 of Article 8 of this Federal Law can only be made by the government of the claimant state to the government of the Russian Federation; claims of natural and juristic persons, municipal bodies, non-governmental and other organisations and associations are not accepted for examination.
  2. The transfer of a removed cultural value to the claimant state is carried out on the basis of a federal law. A federal law on the transfer of removed cultural values is passed on the basis of a bill introduced by the government of the Russian Federation in agreement with the respective state authority of the Russian Federation entity in which territory the regional cultural institution entrusted with the day-to-day management of the respective cultural value is located.
  3. Without the passing of an appropriate federal law, no removed cultural value may be the subject of an act of transfer, donation, exchange or any other form of alienation for the benefit of states, organisations, or individuals.
  4. The transfer of a claimed removed cultural value to the claimant state is carried out against the reimbursement of the expenses for its identification, expert examination, storage and restoration, as well as its transfer (transportation costs etc).
  5. Based on a federal law on the transfer of the removed cultural value the Federal Body instructs the cultural institution charged with the day-to-day management of the removed cultural value, which is the subject of the claim, to conclude an agreement with the organisation (institution or individual) duly authorised by the government of the claimant state on the basis of which the reimbursement of the expenses referred to in section 4 of this Article and the actual transfer of the value (relic) is effected.
    The original of the minutes on the transfer of the removed cultural value is registered and kept at the Federal Body and copies thereof by the cultural institution and the parties concerned.

Article 19. Claims for Family Relics

  1. Claims for removed cultural values which are family relics according to Article 12 of this Federal Law may be filed with the Federal Body by duly authorised representatives of the families that used to be the owners of these values (relics).
  2. If a claim is accepted, the Federal Body will pass a decision to transfer the family relic which is subject of the claim to the family which used to be the owner thereof, against payment of its value as well as reimbursement of the costs of its identification, expert examination, storage, restoration and transfer (transportation etc.).
  3. The cultural institution charged with the day-to-day management of the removed cultural value being claimed on instruction of the Federal Body will conclude an agreement with the duly authorised representative of the family which used to be the owner of the good (relic) on the basis of which the payment of its value and the reimbursement of the expenses referred to in section 2 of this Article as well as the actual transfer of the good (relic) is effected.
    The original of the minutes on the transfer of the cultural value (relic) is registered and kept at the Federal Body and copies thereof by the cultural institution and the parties concerned.

Article 20. Removed Cultural Values Located in Cultural Institutions of Russian Federation Entities or in Municipal Cultural Institutions

Until the period of acceptance of claims of foreign states for removed cultural values as defined in Articles 9 and 10 of this Federal Law expires, those cultural values that are located in cultural institutions of the Russian Federation entities or in municipal cultural institutions are considered federal property according to Article 6 of this Federal Law.

The redistribution of removed cultural values among federal cultural institutions of Russian Federation entities or municipal cultural institutions is not permissible before the expiry of the above mentioned period.

Article 21. Liability for Violation of this Federal Law

Individuals guilty of violation of this Federal Law are liable in administrative, civil and criminal respect according to Russian Federation legislation.

Chapter V. The Present Federal Law and International Treaties of the Russian Federation

Article 22. International Treaties Concluded by the Russian Federation in Pursuance of the Aims of this Federal Law

The Russian Federation concludes treaties under international law which promote the achievement of the aims of this Federal Law, including treaties under international law:

  • on the settlement of questions connected with the reimbursement of the expenses of the Russian Federation and its cultural institutions for the preservation and restoration of removed cultural values that were handed over to foreign states not by way of concluding a treaty or in accordance to international treaties that have no provisions for such reimbursement and which were concluded by the government of the USSR or the government of the Russian Federation with the governments of other states before the coming into force of this Federal Law;
  • on the equivalent exchange of removed cultural values for Russian Federation cultural values located outside the Russian Federation;
  • on assistance to cultural institutions of the Russian Federation in their cooperation with cultural institutions in other states to exchange removed cultural values for cultural values that were lawfully removed from the territory of the Russian Federation at different times as well as to purchase such values;
  • on government guarantees by the receiving country ensuring the preservation and inviolability of removed cultural values while on display in art salons, international exhibitions or other expositions;
  • on return to the Russian Federation of its cultural values plundered and illegally removed from the USSR by the occupation forces of former enemy states.

Article 23. Ratification of Treaties under International Law by the Russian Federation Concerning the Cultural Property of the Russian Federation

The treaties under international law of the Russian Federation concerning removed cultural values, like any other treaty under international law of the Russian Federation concerning its cultural property, have to be ratified.

Chapter VI. Concluding Clauses

Article 24. The Coming into Force of this Federal Law

This Federal Law comes into force on the day of its official publication.

Article 25. Harmonization of Norm Setting Legal Acts with this Federal Law

It is proposed to the President of the Russian Federation, and the government of the Russian Federation is instructed to harmonize their norm setting legal acts with this Federal Law.

The following comments on this law by international experts are printed in alphabetical order according to the authors' names.

A BILL WHICH FACES THE PAST

To consider such a complicated problem as the return of cultural values lacks perspective if the restitution responsibility of Germany and its satellites for their damage to cultural values of the former USSR people, including the Ukrainian people, is not taken into account. It also demands taking into account the political facts which happened in the world and which are stated in "The Paris Charter for a New Europe" of 1990.

The law "On Cultural Values Removed to the USSR as a Result of World War II and Located in the Territory of the Russian Federation" concentrating on the internal legislation does not observe the constitutional principle of prime superiority of international law and fully ignores "The Hague Convention" of 1907, previous international agreements between the USSR and Germany, and the ones between the Russian Federation and Germany of 1990 and 1992.

The preface of this law stating that it creates "favorable conditions for continuing development of international cooperation" is quite disputable in this sphere. The same is true for the conception of this law, because transferred trophy values are considered as compensatory restitution only for the damage of Russia, fully ignoring the damage to the cultural values of Ukraine and often to other former republics of the USSR as well.

As for the right of ownership of Ukraine to cultural values which had been robbed and taken out during the war by Germany and its allies and ended up among the values transferred to the Russian territory, the realization of it is limited by this law to specific conditions (Art. 7). Firstly, a cultural value may be passed to Ukraine, which already laid claim to it, under the condition of full compensation to Russia for all the expenses for its identification, expertise, saving, restoration, as well as transport expenses etc (Art. 18, p. 4). Secondly, under the condition that Ukraine agrees to adopt on a mutual base the same attitude towards the cultural values of Russia.

Taking into account the actual absence of such Russian cultural values on the territory of Ukraine, the fact that even experts have no access to the values of Ukraine in the warehouses in Moscow, Saint Petersburg and Nizhny Novgorod, and the fact that the Russian members of parliament refused to ratify the Agreement of the CIS "About the Return of Cultural and Historical Values to the Countries of its Origin" of 1992, we consider the practical realization of this law in the national interest of Ukraine to be very problematic, as it has been, by the way, during the previous 50 years of restitution stagnation since the war.

Victor Akulenko, Doctor of Law, Leading Scientist of the V. Koretsky Institute
of State and Law of the National Academy of Science of Ukraine, Kiev

THE RUSSIAN LAW ON REMOVED CULTURAL PROPERTY: SOME INTERNATIONAL LAW REMARKS

The Russian Federal Law "On Cultural Values Removed to the U.S.S.R. as a Result of World War II and Located in the Territory of the Russian Federation" has not yet entered into force at the time this article was written. Adopted by two thirds of the total number of deputies of the Federation Council and the State Duma following a presidential veto, it should normally have been signed by President Yeltsin within seven days of its overwhelming parliamentary approval, and published (Article 107, §3, of the Russian Constitution of December 12, 19931). It seems the President has the intention of challenging this law in the Constitutional Court. It remains, however, to be seen if the Russian Constitutional Court has the power to review the international legality of federal laws; at first sight, its power to review such legislative acts appears to be limited to their compliance with the Constitution of the Russian Federation (article 125, §2 of the Russian Constitution), which is quite logical.

Whatever the outcome of those domestic legal problems might be, a quick appraisal of the international law aspects of that Russian law might be of interest.


I. General Overview

The law declares federal property of the Russian Federation "all cultural values located in the territory of the Russian Federation that were brought [as a result of World War II] into the U.S.S.R. by way of exercise of its right to compensatory restitution" (Article 6), "pursuant to orders of the Soviet Army Military Command, the Soviet Military Administration in Germany or instructions of other competent bodies in the U.S.S.R." (Art. 4). "Cultural values" are understood in a very broad sense, i.e. "any property of a religious or secular nature which has historic, artistic, scientific or any other cultural importance" (Art. 4). Those goods could have been owned by the state or privately.

Five different types of properties may, however, be claimed under the law:

  1. the cultural values plundered by Germany or its allies that were the national property of the former Soviet republics (including the Baltic States);
  2. "the property of religious organisations or private charities and which were used exclusively for religious or charitable aims and did not serve the interests of militarism and/or Fascism";
  3. the cultural values previously owned by individuals who have been victims of Nazi/Fascist persecutions based on racial, religious, ethnic or political discriminations;
  4. all other removed cultural values located in Russia and originating from territories of states - other than the former Soviet republics - that were occupied during the war by Germany or her allies;
  5. family relics.
The cultural values plundered by Germany or its allies that were the national property of the former Soviet republics (including the Baltic States) are to be returned to their legitimate owners, if the expenses for their identification, examination, storage, restoration and transportation are paid for by the republic concerned and if that state agrees to return to Russia the removed Russian cultural values present on its territory (Art. 7). No time limit is set for those claims of restitution. Any kind of cultural object seems to be eligible for restitution when it is claimed by a former Soviet republic, except those that "by virtue of their content or nature may serve the purposes of resurrection of the spirit of militarism and (or) Nazism (Fascism)" (Art. 11). Those objects are in general excluded from any restitution.

Germany and its European war allies may claim the restitution of the removed cultural values of types b) and c) originating from their territories (Art. 10, §1).

The states that were occupied during the war by Germany or its allies - the rights of the former Soviet Republics being preserved elsewhere as mentioned earlier - may also claim the restitution of the removed cultural values of types b) and c) originating from their territories. Additionally, they may claim the restitution of all their other removed cultural values located in Russia (Art. 8, §§2 and 3). However, the admissibility of those last claims is conditioned to the existence of a formal restitution claim made to the former enemy concerned by the state from which territory the claimed object has been removed. This formal restitution claim should have been presented within six months of the entry into force of the 1947 Peace Treaties or, if it concerned Germany, before February 1, 1950 according to the procedure established by the Council of Ministers of the U.S.S.R. with respect to (East) Germany (Art. 8, §1).

The states, either former enemies or allies of Russia, must present all their restitution claims - of types b) and c) for the former enemies, and of types b), c) and d) for the states having been occupied by Germany or her allies - within 18 months of the coming into force of the law (Art. 9, §1 and 10, §1). Claims will only be admissible if made by countries ready to turn over to Russia its plundered cultural values located in their territories. Former enemy states must agree to return Russian values free of charge (Art. 10, §1, al. 2), whereas the states having been occupied by Germany or its war allies benefit from a true reciprocity in the sense that they must be ready to return Russian property on "no less favorable legal terms" than the ones imposed by the Russian law (Art. 9, §1, al. 2). In other words, only those states may charge Russia - as Russia charges them - for the identification, examination, storage, restoration and transportation of the goods (Art. 7). States victim of Axis´ aggression must also certify that they have "not received any lump compensation for these values from Germany or any other former enemy state" (Art. 9, §1, al. 1).

Another difference that appears between the claims of former enemies of Russia and the claims of the other states is that only the restitutions to those last states seem to be compulsory by law for the Russian authorities. The law indicates, at least in its translated English version, that the claimed removed cultural values have to be turned over to the states having been occupied by Germany or its allies (Art. 9, §1, al. 1), whereas the restitutions claimed by those former enemies may be carried out (Art. 10, §1, al. 1).

The same discretion seems to be applicable regarding the return of non-Fascist family relics (type e) that, "for humanitarian reasons", may be handed over to authorized representatives of the families concerned (Art. 12, §1). The nationality of the families concerned does not seem relevant. The return of such relics is subordinated to the payment of the costs of their identification, examination, storage, restoration and transportation (Art. 19, §2). Contrary to all other cases where the restitution claim is a state-to-state procedure (Art. 18, §1), the return of family relics may be asked by "duly authorized representatives of the families that used to be the owners of these values (relics)" (Art. 19, §1). However, that does not seem to prevent a state that has been occupied by Germany or its allies to claim such family relics under claims of type d).

Pending any return, all the removed cultural values are deemed to be Russian federal property (Art. 20, al. 1).

The law creates a Federal Body mainly charged with the preservation of removed cultural values and the preparation of the decisions regarding their return (Art. 16). It provides also for some procedural rules that have to be completed by a future Federal Law on the transfer of removed cultural values (Art. 18, §2).


II. Legal Appraisal
  1. Regarding the goods that can be returned to the states that were occupied during the war by Germany or its allies, the Russian law raises no crucial legal questions. It is, after all, only normal - from an international law as well as from a domestic law point of view - that Russia returns the result of the Axis´ plunders that was transferred to the Russian territory following Russian orders. Depriving Germany or its allies of wrongful possessions does only result in a rightful possession if done by the state that was first wrongly deprived.
    The restitutions are, however, conditioned in various ways. Some remarks may be made in that regard.
    Under the Russian law, the beneficiary of the restitution has to pay for the maintenance of the removed cultural values and their transport. This condition would only be acceptable if it is established that the Soviet troops acted bona fide at the time, thinking they were only displacing enemy values. This can, of course, be doubted. A practical problem remains also in the evaluation of those costs. The fact that the same charges can be imposed on Russia when returning its cultural values removed in territories that have been occupied by Germany or its allies will probably lead the parties to settle their differences in that regard.
    On the other hand, the law prevents any restitution if the damage caused has already been compensated by the aggressor states. This condition is rather surprising. Such a reparation payment usually only settles claims between the creditor and the debtor and is of no effect on the property title of the removed (thought lost) value, which continues to belong to the party that has been wrongly deprived of it. The payment of any kind of reparation does not seem therefore a good reason for Russia to retain the object concerned. If the object is returned, it would eventually be for the faulty state that paid compensation to claim for a (partial) reimbursement.
    The 18 months claiming period seems a priori perfectly reasonable. The fact that a prior claim must have been presented to the vanquished states within the time limits set by the 1947 Peace Treaties seems also normal in law, since it concerns the restitution of cultural values first removed by those former enemies. Moreover, the states concerned are in principle all parties to the 1947 Peace Treaties. The time limit set for prior claims made to Germany (February 1, 1950) does not result from a multilateral peace treaty but has been unilaterally decided by the Council of Ministers of the U.S.S.R. for its own zone of occupation. One knows indeed that the external restitutions have been reserved matters for the Four Occupying Powers2. For instance, the restitution claims of cultural objects supposedly present in the Western Zones had, following the "Überleitungsvertrag" (Treaty of Transition), to be presented at the latest before May 8, 1958.3 The date set by the Soviet authorities seems therefore capable of operating against the claiming states that were occupied by Germany or its war allies. Problems may, however, arise regarding values that were thought to be destroyed, and therefore not claimed in due course, whereas in fact they were removed by the Soviet Union and only recently ´discovered´.
  2. Regarding the goods that are to be retained and appropriated by Russia - except those that "by virtue of their content or nature may serve the purposes of resurrection of the spirit of militarism and (or) Nazism (Fascism)" (Art. 11) -, the law is based on the idea of "compensatory restitution". This notion is defined in Article 4 as "the kind of international legal material obligation of an aggressor state, applied wherever the enforcement of the said state's liability in form of a regular restitution is impossible, to compensate for the material damage inflicted on another state by handing over to the damaged state objects of the same kind (or by their acquisition by the damaged state in his own favor) as those plundered and illegally removed by the aggressor state from the territory of the damaged state".
    It is obvious that, even before the outlawry of war, certain cultural goods were specially protected during the time of armed conflicts.4 It is indeed difficult to find any military advantage in the destruction of such goods, or in their appropriation as war booty. However, neither the rules concerning the prohibition of the destruction of cultural goods nor those relating to war booty are breached by the Russian law. The big question raised by the Russian law is indeed to know whether (and to what extent) international law allows for the unilateral appropriation, by a state that has been aggressed, of cultural values that belonged to the aggressor state(s) and were removed to the victim's territory by its duly authorized organs, as a form of reparation of the damage caused by the aggressor(s) to cultural values of the victim state.
    The least one can say is that no straightforward legal appraisal of "compensatory restitutions" - better labeled as "reparations by replacement" - can be made. The question is specially difficult in relation to conflicts prior to the entry into force of the 1954 "The Hague Protocol for the Protection of Cultural Property in the Event of Armed Conflict", whose Article 1(3) states that cultural property "shall never be retained as war reparations". In order to have a clearer view of the issue, a distinction should be drawn between the situations where a peace treaty has been signed and the others where no such settlement has yet been reached.
  3. Under the 1947 Peace Treaties, the vanquished states have renounced all claims arising out of the war5 and have accepted that their property or the one of their nationals present in the territories of the victors may be seized and liquidated as a way of reparations.6 In order to prevent any private law difficulties or claims, the defeated states have accepted in the treaties to compensate their nationals whose properties are so liquidated. Some exceptions are provided for, like regarding the goods belonging to religious and charitable institutions. No exception is, however, made for cultural goods in general. The Russian law seems to conform with those provisions. It should however be stressed that only the goods that were present in the victor's territory at the time of the entry into force of the treaties are covered by those contractual provisions.
  4. The situation with regard to goods originating from Germany is more difficult to address.

The "2+4" Moscow treaty of September 12, 1990 on the Final Settlement with Respect to Germany7 has been considered by some, if not as a "peace treaty",8 at least as a definitive - though implicit - renouncement of all reparation claims against Germany.9 This question is nearly as much puzzling as the legal status of Germany after the war has been. In any case, such renouncement could not prevent by itself "reparations by replacement" as provided for by the Russian law, since it does not call for any performance by Germany of any kind of obligation.

By Article 16 (2) of the Good Neighborhood and Cooperation Treaty signed by Germany and the U.S.S.R. on November 9, 1990, both states agreed to return to their rightful owners or successors "lost or unlawfully transferred art treasures which are located in their territory".10 The Russian law on removed cultural values seems to run contrary to this commitment, which was reiterated on December 16, 1992 in Article 15 of the cultural agreement concluded between Germany and Russia.11 However, the Russians consider that the terms of those articles only concern the properties that were really lost (and not only hidden) or stolen (and not removed by the authorities).12 Since the Russian law does not validate in any way individual plunder by Soviet soldiers acting without orders, it could be viewed as compatible with those international obligations. More fundamentally, it presupposes that the unilateral displacement and appropriation of the aggressor's cultural values for "reparation by replacement" purposes are not per se unlawful in international law. That view is, of course, highly debatable. In such a short essay, it is obviously difficult to pass a definitive judgment on this problem. It is, however, possible to make some remarks and to point at some solution.

It should first be remembered that the breach, by Nazi Germany and its allies, of the fundamental rule that forbids wars of aggression calls for proper compensation of the loss suffered by the victim states, even in the absence of any treaty provision to that effect. In case of destruction, the reparation takes usually the form of a (financial) compensation. But is compensation the only form of reparation when the "restitution in kind" of cultural values is impossible? Of course, every piece of art is unique and irreplaceable by another one. However, it seems that the states´ practice accepts some forms of "reparations by replacement". For instance, the 1947 Peace Treaties provide explicitly for such possibility when it is impossible for the vanquished state "to make restitution of objects of artistic, historic or archaeological value, belonging to the cultural heritage of the United Nation from whose territory such objects were removed by force". The vanquished state shall in that case transfer to the victim state "objects of the same kind (...) and of approximately equivalent value" if such objects exist in its territory.13 The Versailles Treaty contained already in 1919 similar clauses.14 Of course, the creditor is obviously always free to accept any kind of reparations to settle its claim. The problem is, however, to know whether such a form of reparations can be imposed on the debtor, absent its consent.

After the outlawry of war, such a possibility could only result from a special "sanction" of the "crime of aggression", which would not so much lay in the substantial amount of reparations that should be "paid" by the aggressor, but in the (unilateral) manner they could be extracted by the creditor. This might be possible, although rather uncertain. It is in any case quite difficult to demonstrate in a few pages. At least some states´ practice seems to suggest it and some recent works of the International Law Commission tend to back up this view.15 The reference made in the Russian law to article 107 of the UN Charter as a legal basis for the act may point to the same direction, however obsolete this article may have become.

However that may be, such unilateral extraction of reparations by the victim state could not be unlimited. Firstly, objects that are intrinsically part of the cultural heritage of a nation should be returned and should not serve as "reparations by replacement". Secondly, in the case of cultural values, a certain "rule of reason" should at least apply. In other words, the unilateral appropriation of cultural values of the aggressor would only be acceptable if they have a certain likeness with the ones of the victim state that they are supposed to replace. As irreplaceable as it may be, if a destroyed piece of art has to be replaced, it should be replaced by an object of the same kind and approximately the same value. This criterion has been employed in the Peace Treaties and the Russian law explicitly refers to it when it defines the "compensatory restitution" as the handing over to "the damaged state objects of the same kind (...) as those that were plundered and illegally removed by the aggressor state". In practice, the terms of the Russian law fail however to respect this "rule of reason" and allow for the unilateral retention of some cultural values that have nothing in common with those that they are supposed to replace. This is probably difficult to accept. The retention of such unsimilar cultural values may be viewed as a "pledge" in order to receive financial compensation from the aggressors. One must however not analyse such a pretension, since the Russian law does not refer to that purpose.

In any case, assuming it exists in international law, such unilateral right to extract reparations, even so limited, would be without prejudice to claims to ownership based on domestic law titles.

Pierre d'Argent, Assistant, Faculty of Law, Catholic University of Louvain

Notes:
1 Available on internet at http://www.bucknell.edu/departments/russian/const/constit.html.
2 For the Western Zones, see the 1949 London Occupation Status, art. 2.
3 Convention on the Settlement of Matters Arising out of the War and the Occupation, as amended by Schedule IV to the Protocol on the Termination of the Occupation Regime in the Federal Republic of Germany, signed in Paris on October 23, 1954, Chapter V, art. 2, §2, II BGBl. (1955) 433.
4 The protection of cultural goods in times of armed conflicts results from numerous international instruments: Art. 27 The Hague Rules of 1907; Art. 5 The Hague Convention IX of 1907; Art. 25 and 26 Hague Draft Rules on Air Warfare of 1923; 1954 The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (and Protocol); Art. 53, 85 of 1977 Geneva Protocol I; Art. 6 of 1981 UN Convention on Prohibitions or Restrictions on the Use of certain Conventional Weapons. One may add the 1945 UNESCO constitution, the 1972 Paris Convention on world heritage and, for the American States, the 1935 Washington Treaty ("Roerich Pact"). Besides those instruments that forbid the destruction of cultural goods, the general rules regarding the prohibition of pillage (Art. 28 and 47 of The Hague Rules 1907, Art. 33 of Geneva Convention IV 1949) and which limit the right to war booty (Art. 53 of The Hague Rules 1907) are of course relevant.
5 Art. 76 (Italy); Art. 30 (Romania); Art. 28 (Bulgaria); Art. 32 (Hungary); Art. 29 (Finland).
6 Art. 79 (Italy); Art. 27 (Romania); Art. 25 (Bulgaria); Art. 29 (Hungary). Concerning Finland, the rule is however one of restoration (Art. 27).
7 II BGBl. (1990) 1317 or 19 ILM (1990) 1186.
8 See A. Gattini, Restitution by Russia of Works of Art Removed from German Territory at the End of the Second World War, EJIL, 1996, p. 76.
9 I. Seidl-Hohenveldern, Das Ende der Reparationen nach dem Zweiten Weltkrieg, Verfassungsstaatlichkeit, Festschrift für K. Stern, München 1997, S. 92.
10 30 ILM (1991) 504 or I.I BGBl. (1991) 798.
11 II BGBl. (1993) 1256.
12 A. Gattini, op. cit., p. 77.
13 Art. 75, §9 (Italy); Art. 22, §3 (Bulgaria); Art. 24, §3 (Hungary).
14 Art. 247.
15 See article 52 of the Draft Articles on State Responsibility, adopted in 1996.

ABOUT THE BASIC LEGAL PRINCIPLES OF THE RUSSIAN LAW

The Federal Law passed by the Russian Parliament about the cultural objects brought to the USSR as a consequence of World War II and which are located in the territory of the Russian Federation is founded on the following basic principles:

First: the principle of compensatory restitution according to international law
Second: the statement of ownership of the Russian Federation of the transferred cultural objects
Third: the idea that the legal relations concerning the return of cultural objects are relations between states according to their legal nature
Fourth: the idea that only the parliament can decide about the return of the cultural objects which are to be found on Russian territory.

1- Compensatory Restitution

All the cultural objects that were transferred to the territory of the Russian Federation, apart from some strongly limited exceptions, will be considered as property of the Russian Federation with reference (Art. 6) to the principle of compensatory restitution (restitution in kind). Under the term of compensatory restitution the Law understands in accordance with international law the responsibility of a state which has committed an act of aggression. Such responsibility is applied in cases where the implementation of such a responsibility by means of normal restitution (return of cultural objects transferred unlawfully from the country affected by the aggression) is impossible. The compensatory restitution takes place by means of the return of similar objects of the same kind to the damaged state (or their acquisition by the damaged state in its own favor) to compensate for the objects which were stolen and taken out from the territory of the damaged state by the aggressor country. That means that in agreement with the Soviet (Russian) international law doctrine, the Law understands by restitution the type of material responsibility of an aggressor country according to international law. The Law takes for granted that this principle was anchored in the Peace Treaties of 1947 and in other international law files.

2 - Ownership

According to Art. 6, all the transferred cultural objects which were removed to the USSR to guarantee its right to compensatory restitution and which are located in the territory of the Russian Federation are the property of the Russian Federation and in federal ownership. As far as the exceptions of these regulations are concerned (Art. 7, Art. 8), the majority of them concerns objects that were the property of religious organizations or of private charitable organizations, or the property of people, who were dispossessed because of their race, religion or nationality or of people, whose property was confiscated because of their active fight against National Socialism (Fascism) (Art. 8).
The Law cannot be understood in such a way, that all the cultural objects transferred to the USSR as a result of World War II and which are located in the Russian territory are now the national property of Russia. The right of ownership affects the cultural objects which were transferred to the USSR to guarantee its right to compensatory restitution. This category is defined by the Law as only those cultural objects which were transferred due to orders of the military command of the Soviet Army and the Soviet Military Administration in Germany or by virtue of other competent bodies under the jurisdiction of the USSR. Such a conclusion is reached on the basis of the title of the Law and Art. 3. According to Art. 3 the Law applies to all cultural objects which were transferred to the USSR as a consequence of World War II and which are located in the Russian territory, independent from the actual possessor as well as independent from the circumstances of the origin of such actual possession. That means, that all the rules, for example about the return of cultural objects, about the conditions of an exchange of transferred cultural objects against cultural objects of the Russian Federation (Art. 15), and other rules, have to be applied. But Art. 6 about the right of ownership is valid only for the first above mentioned category of cultural objects.
It is known that among the cultural objects which are located in the territory of the Russian Federation are objects that in former times were in private possession (of private property). According to this law cultural objects that are family relics have also become federal property, but for these objects there was planned a possibility for the return to the family representative under special conditions (against payment of its value and reimbursement of the diverse costs).

3 - International Law Relations

The Law takes logically for granted that the demands for restitution can only be made by the governments of foreign countries to the government of the Russian federation. Foreigners, as private individuals, can neither submit claims to the government nor charges in courts of the Russian Federation. The Law provides just one exception to this rule. According to Art. 16, a federal body will be established (an authorized federal body for the preservation of cultural objects). This organ prepares the drafts of the decisions (according to Art. 18) and takes decisions about proposals concerning family relics (according to Art. 19). About such decisions private individuals can submit charges in court.

4 - Question of Authority

As regards authority, all kinds of handing over or return of cultural objects according to the Law can only take place on the basis of a law. That means, that the decision belongs exclusively to the authority of the parliament and not the president, the government or other organs of the executive power of the Russian Federation. Without the passing of an appropriate federal law, no removed cultural property can be the object of a handing over, a gift, exchange or any other form of disposition in favor of countries, organizations or individuals. Thus the law plans a very strict regulation concerning the acceptance of decisions about the return of cultural objects. They can only be returned on the basis of federal laws. The acceptance of such laws means that in practice the return of cultural objects will be in most of the cases impossible, apart from the return of cultural objects that were removed to Russia not following orders of the Soviet Army, but unlawfully by other people and whose presence in Russian territory is now unlawful.
The above given explanations refer to the objects that were earlier property of an enemy state (Germany, and countries allied with Germany in the Second World War: Hungary, Romania, among others). Concerning the objects that were brought to Germany from Poland, former Yugoslavia, France, Belgium, The Netherlands, and other countries whose territory was totally or partially occupied by enemy states, there are special regulations in the Law that are not mentioned in the above comments.

Mark Boguslawskij, presently at the Institute for Eastern Law,
Christan-Albrechts-University, Kiel

HUNGARIAN CONSIDERATIONS REGARDING THE RUSSIAN LAW ON CULTURAL PROPERTY

During the Second World War, Poland suffered losses not only as a result of hostilities, destruction, and plunder perpetrated by the German occupiers. One of the most painful losses was the forfeiture of the bulk of cultural heritage amassed in Poland's eastern provinces which constituted one third of the pre-war Polish territory and as a result of the redrawing of borders fell to the Soviet Union. One of the most commendable centres of Polish culture was the Ossolinski National Institute (Ossolineum) in Lwów, established in 1817 and consisting of the library, the Lubomirski Museum, and the Publishing House. The financial basis for maintenance were revenue from its own landed estates and publishing activity, and it owed its dynamic development primarily to the generosity of the Polish population, not only from Galicia but also from other parts of the country. During the period of Poland's loss of independence, the Ossolineum played the role of a Polish national library, collecting all sorts of materials related to the history and culture of Poland. By 1939 the Ossolineum's library and museum collections rated among the largest and most valuable in Poland owing to its rich manuscript collections (including autographs of the greatest Polish writers and poets), Poland's biggest collection of periodicals and the collection of Polish old prints from the 15th-18th century.

Following the incorporation of Lwów into the USSR in 1939, the Ossolineum collections were taken over by the Academy of Sciences of the Ukrainian Soviet Socialist Republic which in 1944/45 created on their base a separate Polish Sector of the Lwów Library of the Academy. The final regulation of the Polish-Soviet border in 1945, the nearly total removal of the Polish population from Lwów, and the remaining Eastern provinces in 1945/46 made the problem of the Ossolineum's future extremely acute. It was unacceptable to the Poles that the institute's collections should be left outside the borders of the Polish state. The general opinion was that the fact of the border transfer was not a decisive factor and the collections should remain the property of the nation that had built up and created them, and that the deported population should be able to take with them to Poland the goods they had produced.

The Ukrainian authorities could not remain indifferent to the Polish claims of revindication. However, they did not decide upon an all-out restitution of the Ossolineum collections but confined themselves to a transfer of only a small part of them to Poland in 1946/47. It must be noted that the division of the Ossolineum collections made then by the Ukraine affected only the manuscripts, old prints, and 19th and 20th century books and excluded, among others, the cartographic, graphic and museum collections which were in their entirety retained in Lwów. The arbitrariness of the classification process, the haste with which those activities were performed, political considerations and strict quantitative limitations resulted not only in the detention in Lwów of a large quantity of collections relating to the history and culture of Poland but also in the fact that integral collections and bequests designated for a transfer to Poland were handed over in an incomplete form without bothering about their integrity and segmented in an arbitrary manner. Among the collections retained in Lwów were, among others, Polish books and periodicals published in Lwów and Wilno, complete sets of Polish newspapers from the years 1918-1939 as well as manuscripts in which only the tiniest reference to the Ukraine was found.

As a result of a division carried out in that manner Poland received only about 30% of the Ossolineum collections. However, in 1946, their handing over made it possible to reactivate the Ossolinski National Institute in Wroclaw as the continuation of and heir to the tradition of the Lwów institution. According to estimates ca 80% of the 19th and 20th century book collection, ca 67% of the newspaper and periodicals collection, ca 47% of the manuscript collection, and ca 96% of the cartographic collection remained in Lwów. While the lacunae in the 19th and 20th century book collection and the old prints collection have been filled up by now, the absence of the manuscripts, prints, museum pieces, newspapers, and periodicals as well as the Institute's archives that have remained in Lwów is most acutely felt in Wroclaw. The efforts made after 1946 to integrate the entire Ossolineum collection - considered a cultural heritage of the Polish nation - have not been successful.

Maciej Matwijow, Librarian, Ossolinski Foundation, Wroclaw

THE RUSSIAN BILL TO NATIONALIZE TROPHY ART: AN AMERICAN PERSPECTIVE

The art world's attention has recently focused on a high-stakes political debate in Russia over whether to nationalize the vast collection of trophy art taken by the Soviet Army during and after the Second World War. Under the banners of rightful restitution and moral indignation, the Russian Parliament has sought to implement legislation that would lay claim to all "cultural artifacts" currently found in Russia as "partial compensation for ... the plunder and destruction" of Russia's cultural values by Germany and her war allies. A defiant President Yeltsin has twice refused to sign the measure, fearing the likely international repercussions it would have on Russia's efforts to recover its own precious artworks from Germany, and making it virtually impossible for Russia to display the art beyond its own borders.

This article examines the legal underpinnings of Russia's claim to the trophy art, and the extraterritorial effect such nationalization legislation would have in the United States. The article concludes that if such trophy art were to enter the United States, Russia's claim of ownership would be vulnerable to challenge in a U.S. court on the grounds that the initial seizure was plunder in violation of international law, and that neither the continued secretive retention of the trophy art for decades nor the Russian government's belated attempt to retroactively validate its position through nationalization are sufficient to divest the former owners of their rights in the art.1

The Russian Claim

It was not until 1990 that Russia first revealed to the world the vast collection of trophy art stored secretly in museums throughout the countries of the former Soviet Union.2 For many Russians, this immense assemblage of exceptionally valuable art is seen as just compensation for the devastating damage inflicted on their country during the war. The former Soviet Union suffered the loss of over twenty million citizens during the war as well as the systematic looting and destruction of museum collections.3 However, when the German army began to weaken in November 1943, the Soviet sought retribution.4 A Soviet "Trophy Commission" scoured Germany and other Axis countries to find hidden treasures and have them shipped back to the Soviet Union.5 At the time, Soviet officials envisioned that the art would fill a grandiose "Stalin Museum" in Moscow that would be the envy of the world.6

Presently, most Russians believe that their government should never return the trophy art. Notwithstanding such strong public sentiment, shortly after the treasures´ existence was made known, the Soviet Union and Germany - which was the primary target of the Soviet Trophy Commission7 - signed agreements for the mutual exchange of the art. Among the agreements was the 1990 Good Neighborliness Treaty, which stated that "missing" or "unlawfully transferred" art treasures located in either country's territory "will be returned to their owners or their legal successors".8 Nevertheless, the countries have exchanged few works since then.9

The Russian Bill to Nationalize the Trophy Art

The bill proposed in Russia to nationalize the trophy art declares that all "cultural values" currently found in the territory of the Russian Federation are federal property "irrespective of the actual possessor and the circumstances which led to this actual possession".10 Retention of the artworks is intended to be a "partial compensation for the damage suffered by the cultural property of the Russian Federation...".11

Although the Russian bill contains several exceptions, such as for "the property of religious organizations or private charities ... used exclusively for religious or charitable aims" and for cultural artifacts that belonged to individuals who were deprived of their property "because of their active fight against Nazism (Fascism)",12 the proposed processes by which the Russian government would entertain claims for these exempted artifacts is complicated and success seems difficult. Only governments may make formal claims to recover such exempted artifacts, and a separate claim must be made for each of the estimated hundreds of thousands of artworks now under Russian control.13 Even if the governments asserting such a claim were to be successful, it would still be responsible for all costs, including the costs of storage, restoration, conveyance and expert examination related to each object recovered.14

United States Courts Would Most Likely Not Recognize
Russian Claims to the Trophy Art

President Yeltsin is rightly concerned that if the bill became law, Russia would find it difficult to exhibit its trophy art outside the Russian Federation. Indeed, if the nationalization legislation is ultimately enacted and such art were to enter the United States, the original owners (or their successors-in-interest) would have compelling legal grounds for seeking return of the art through the U.S. courts.15 Based on well-settled property law principles in the United States, the German claimants would appear to have clearly superior rights in the art,16 subject only whether or not U.S. courts would recognize the Russian nationalization legislation as a controlling "act of state".

Under the act of state doctrine, courts in the United States normally accord full recognition to the official acts of recognized governments, and will not entertain lawsuits, which seek to directly or collaterally challenge those official acts.17 Nonetheless, the doctrine does have its exceptions and limitations. As customarily applied in cases involving the appropriation of property by a foreign government, the doctrine mandates only that:
the Judiciary Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government ... recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding customary international law.18

Thus, the act of state doctrine does not appear to be operative in situations where either (1) the seizure of property occurred outside the foreign sovereign's borders, or (2) the status of the property is subject to a treaty or "other unambiguous agreements regarding controlling legal principles" or a principle of customary law not in dispute.

Applying these principles to Russia´s nationalization legislation, it is apparent that the act of state doctrine would not prohibit U.S. courts from favorably considering recovery claims brought by the original German owners of the trophy art. First, the Soviet armies seized the art beyond the borders of the Soviet Union, in the occupied territory of Germany, Hungary and other former Axis countries. Second, the Soviets´ seizure and continued retention of the art violate several international treaties.19 In particular, Russia and, later, the Soviet Union were parties to several treaties which condemned pillage or plunder as compensation for losses suffered in war. For example, each of the three Hague Conventions protects cultural property.20 Specifically, Article 53 of the 1899 Hague Convention on the Laws and Customs of War provides that an army of occupation may only confiscate property which may be used for military operations.21 Additionally, Article 56 requires that public property such as artworks and religious property are to be treated as private property and not intentionally destroyed or damaged.22

The Hague Convention of 1907 contains similar provisions and specifically states that

[a]n army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations.23

Likewise, the 1954 Hague Convention seeks to prevent the use of cultural property as war reparations. 24 The preamble states that "damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind...".25 Among the Convention's provisions, Article 4 requires the signatory conventions to have respect for the cultural property of other sovereign nations.26 Upon the invasion of a country, the invader must take the same measures to protect the cultural property of the invaded nation as the nation itself should have taken.27

The continued retention of the trophy art also appears to violate the principles of the 1970 UNESCO Convention.28 The Soviet Union was a signatory to the UNESCO Convention which prohibits the importation of cultural property illegally exported or stolen from a foreign nation.

Cultural property is defined as "property which is of importance to the fields of archeology, prehistory, history, literature, art, or science".29 Germany has specifically declared that the art seized by the Soviet army was part of its cultural heritage, and the same can undoubtedly be said of trophy art seized from other former Axis countries. Thus, the restitution provision of the Convention requires Russia, as the importing country and the successor to the treaty obligations of the Soviet Union, to take steps to return such cultural property to the appropriate country of origin.30

The notion that the act of state doctrine would not be an impediment to adjudicating claims to trophy art in the United States is further supported by statutory provisions recently enacted by the U.S. Congress. Under a statute known as the "Hickenlooper" or "Sabbatino" Amendment, Congress expressly provided that the act of state doctrine does not apply in cases involving a claim by any party, including a foreign state, to property: (1) that is physically before the court, (2) that was confiscated by a foreign state after January 1, 1959, and (3) that was taken contrary to international law, unless otherwise determined by the President of the United States (22 U.S.C.A. §2370(e)(2)(1990)). Arguably, the Russian parliament's current attempt to retroactively legitimize the country's illegal seizure of trophy art during World War II could be considered a "confiscation after January 1, 1959" under the statute, thus, providing the court with an additional basis for finding the act of state doctrine inapplicable and entertaining a suit for the recovery of the art.

Conclusion

If a court in the United States were to examine the issue of ownership of the trophy art, it could be expected to conclude that the art's initial seizure and subsequent nationalization by Russia were not protected by the act of state doctrine. Rather, the seizure of the art would likely be considered illegal plunder and, Russia´s retention and nationalization of the trophy art would be deemed a violation of international law as set forth in The Hague Conventions and the UNESCO Convention.

Thomas R. Kline, Lawyer, Andrews & Kurth L.L.P., Washington

Notes:
1 The author wishes to thank Scott Richie and Sheila Rock for their assistance with this article.
2 Yury Buida, Letting Trophy Art Go, Moscow Times, April 10, 1997.
3 Sylvia L. Depta, Twice Saved or Twice Stolen?: The Trophy Art Tug-of War Between Russia and Germany, 10 Temp. Int'l & Comp. L.J. 371 (Fall 1996).
4 Id. at 375.
5 The Soviets' so-called Trophy Commission compiled remarkably detailed lists of objects (and their specific locations) in the museum collections of Germany, Austria, Italy, Hungary, Romania, and Finland, which were to be targeted by Soviet troops. Konstantin Akinsha & Grigorii Kozlov, The Discovery of the Secret Repositories, The Spoils of War (Abrams 1997), at 163. The pillage of art undertaken by the Trophy Commission was only stopped by the institution of special units of American and English soldiers known as the "monuments men", who accompanied the Allied troops through Europe, protecting monuments, fine arts, archives and other cultural values. Depta, supra note 3, at 376.
6 Akinsha, supra note 5, at 164.
7 The German government claims that approximately two hundred fifty thousand works of art that were taken from Germany are still in the possession of Russia, along with two million rare books and tons of archives. Dimitry Zaks, Parliament Defies Yeltsin on War Art, The Moscow Times, May 14, 1997.
8 Treaty on Good Neighborliness, Partnership and Cooperation, Nov. 9, 1990, F.R.G.-U.S.S.R., 30 I.L.M. 504. See also S. Shawn Stephens, The Hermitage and Pushkin Exhibits: An Analysis of the Ownership Rights to Cultural Properties Removed from Occupied Germany, 18 Hous. J. Int'l L. 59,80 (Fall 1995). The treaty was reaffirmed by the parties in the German-Russian Cultural Agreement of 1992. Id.
9 The author is not aware of a single object claimed by a private entity or family that has been returned.
10 Federal Law on Cultural Values Removed to the U.S.S.R. as a Result of World War II and Located in the Territory of the Russian Federation, Chapter I, Article 3 and Chapter II, Article 6.
11 Id. at Preamble.
12 Id. at Chapter II, Article 8 (2) and (3).
14 Id.
15 As a practical matter, neither Russia nor a state-sponsored institution would even contemplate exhibiting such art in the United States unless formal assurances of legal protection could be obtained from the U.S. government. Such protection would be necessary for Russia because the immunity from suit that foreign states are customarily accorded is no longer available under the Foreign Sovereign Immunities Act for cases "in which rights in property taken in violation of international law are in issue and that property ... is present in the United States." 28 U.S.C. § 1605(a)(3). Nevertheless, it is not entirely far-fetched that artworks seized from institutions or individuals by the former Soviet Union could have since fallen into private hands and, if they were to appear on the U.S. art market, claims for their return could be made by the original owners. In such instances, the possibility could arise that either: (1) the current possessors would claim that official seizure by the Soviet government, or later acts by that government or successor governments, divested the original owners of their rights; or (2) Russia could intervene in the litigation, and seek to have the property returned to it, rather than the other claimants. Indeed, virtually identical arguments - from the context of a different war and different countries - were raised in a U.S. court in Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 917 F.2d 278 (7th Cir. 1990). The original owner of the disputed artifacts, represented by the author, prevailed in that case.
16 Under fundamental principles of international law, as recognized by U.S. courts, only "booty" (which is defined as "property necessary and indispensable for the conduct of war, such as food, means of transportation, and means of communication") may lawfully be taken by an occupying force during times of war. Menzel v. List, 267 N.Y.S.2d 804, 810 (Sup. Ct. 1966). Theft of artwork is "pillage" or "plunder", which "is the taking of private property not necessary for the immediate prosecution of war effort, and is unlawful". Id. at 811. Good title to such illegally obtained property cannot, under U.S. law, be transferred to another - even a good faith purchaser for value - because "[o]nly the true owner's own conduct, or the operation of law ... can act to divest that true owner of title in his property..." Federal Republic of Germany v. Elicofon, 536 F. Supp. 813, 833 (E.D.N.Y. 1978). Thus, both the original taking of the trophy art by the Soviet Union and any subsequent transfer of the stolen items would be void under U.S. law.
17 The act of state doctrine reflects the general concern of U.S. courts about the competency of the judiciary to decide questions in the area of foreign relations. Under this doctrine, a U.S. court may refuse to sit in judgment on the legitimacy of a foreign sovereign's public acts, even if those acts are offensive to the public policy of the United States. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S. Ct. 923, 11 L. Ed. 2d 804 (1964).
18 Sabbatino, 376 U.S. at 428, 84 S. Ct. at 940, 11 L. Ed. 2d at 823-24.
19 To the extent that the United States is a signatory to such international treaties, they are deemed by U.S. courts to be a binding and enforceable part of U.S. domestic law. In addition, a court in the United States may examine and apply principles of international law which the court considers to be reflective of the public policies of this country. 9 James Wm. Moore, Moore's Federal Practice § 44.1.04[2] (3d ed. 1997).
20 John H. Merryman, Two Ways of Thinking About Cultural Property, 80 Am. J. Int'l L. 831, 835 (Oct. 1986). The Russian Federation informed the U.S. government in 1992 that it would continue to honor the obligations undertaken by the Soviet Union through international agreements. Stephens, supra note 2, at 84.
21 Stephens, supra note 2, at 77.
22 Id.
23 Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, art. 56, 36 Stat. 2277. Both the United States and Russia are signatories of this Convention.
24 Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240. See also, Stephens, supra note 2, at 78.
25 Merryman, supra note 18, at 836.
26 Hans Kennon, Take a Picture, It May Last Longer if Guggenheim Becomes the Law of the Land: The Repatriation of Fine Art, 8 St. Thomas L. Rev. 373, 385 (Winter 1996).
27 Id. Although the United States was not a signatory to the 1954 Convention, at least one court has suggested that the Convention articulates U.S. public policy concerning the protection of cultural property. See Goldberg, 917 F. 2d at 295-96.
28 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 823 U.N.T.S. 231, 10 I.L.M. 289.
29 Stephens, supra note 2, at 85.
30 Kennon, supra note 24, at 387. The UNESCO Convention was adopted by the United States in 1983 and thus applies only to thefts occurring after that date. Church of Cyprus, 917 F. 2d at 297. However, the United States Court of Appeals, Seventh Circuit, has also indicated that the UNESCO Convention embodies U.S. policy of protecting cultural property. Id.

RUSSIAN LAW: THE POLISH PERSPECTIVE

After years of silence and refusal of any discussion of the fate of works of art removed by the Russian military administration from territories of various European countries it seems now that the Russian parliament looks for the way out of this uncomfortable situation. The proposed remedy is the "Federal Law on Cultural Values Removed to the U.S.S.R. as a Result of World War II and Located in the Territory of the Russian Federation" adopted recently by the Duma and the Federation Council after a long and complicated parliamentary procedure. This Law is not yet a binding legal instrument but due to its potential consequences on a major international scale it should be a subject of wider discussion.

My note is, however, not intended to comment on such aspects of this Law, for example, on its coherence with the law of nations or the political consequences of its final procedural acceptance. In fact it was President Yeltsin who commented clearly enough by announcing he would send it to the Constitutional Court. I will rather focus on the position of Poland in the whole story, in particular by answering the question to what extent heritage lost by Poland in the course of the last war and occupation can be affected by this Law.

First of all we should make clear that Poland and the Russian Federation are parties to the Treaty on Friendly and Good Cooperation signed in 1992, which in its article 13 provides also a good legal basis for the final liquidation of the effects of war in the field of culture. It has, of course, only a complementary character to the principles of the international law of war in question, and makes more precise the direction which both states decided to follow towards solving the problem. According to the treaty's provisions, as well as to other agreements signed later, Poland and Russia nominated special governmental commissioners who in 1993 adopted clear rules of their joint work on the archival research, exchange and release of information, restitution, etc. It is also worth mentioning that a Russian Commissioner works under the auspices of the State Commission for the Restitution of Works of Art and is a member of this body. Taking into account all these regulations and in particular their legal character we can reach the easy and unquestionable conclusion that the discussed new Russian Law is not relevant to Polish claims. This can not, however, be by any means so obvious if we have the objectives of that Law carefully examined.

According to its Article 3, the Federal Law covers "all cultural values removed to the USSR during World War II and located in the territory of the Russian Federation, irrespective of the actual possessor and the circumstances which led to this actual possession". Such objects are declared in Article 6 to be property of the Russian Federation unless:

  • "affected states" prove they claimed them within the proper time limit (for example, before February 1, 1950 in case of claims for objects looted by German Nazis) (Article 8.1)
  • cultural objects in question were the property of religious or private charitable organizations, and were used only for religious or charitable purposes (Article 8.2)
  • cultural objects in question were the property of persons who lost them as a result of their fight against Nazism or against occupants, and/or because of their race, religion or nationality (Article 8.3).

All "affected states" must provide fully documented claims within the time limit of 18 months (Article 9) from the moment the law comes into force. These claims will be reviewed and finally proceeded by a special Federal Agency to be established pursuant to Article 16.

One of the final provisions declares that "the Russian Federation concludes treaties under international law which promote the achievement of the aims of this Federal Law", including agreements "on the settlement of questions connected with the reimbursement of the expenses of the Russian Federation and its cultural institutions for the preservation and restoration of removed cultural values that were handed over to foreign states not by way of concluding a treaty or in accordance to international treaties that have no provisions for such reimbursement and which were concluded by the government of the USSR or the government of the Russian Federation with the governments of other states before the coming into force of this Federal Law".

Critical analysis of all above quoted provisions, as well as other ones, must lead to the conclusion that the discussed Law is entirely unclear and dubious. Does it really mean that the Russian Federation will try to renegotiate terms of restitution accomplished in the 1950s? How could countries like Poland, which were almost completely destroyed and certainly totally disorganised, claim all its works of art and give full evidence of losses just during the early years after the war was finished? Will the new federal body take over duties of the already working State Commission for the Restitution of Works of Art and the whole work start again from the beginning?

These and many other questions can not be answered by even a very careful reading of the discussed Federal Law. What is known for sure is that such an act will not help to build new and better relations between "affected states" as it was many times declared to be the policy of the Russian Federation. With the passage of time people can certainly forgive even the wanton destruction of towns and villages but will never forget lost heritage which constitutes a part of their national identity.

Wojciech Kowalski, Department of Intellectual and Cultural Property Law,
Faculty of Law and Administration, University of Silesia, Katowice

COMMENT ON THE RUSSIAN FEDERAL LAW OF 1997 ON CULTURAL VALUES

Article 2 of the statute mentions international instruments on which it is based and which allegedly justify "compensatory restitution" as enacted in Article 6. None of these instruments legalize pillage, or any confiscation of foreign cultural property. Already during World War II such behavior was forbidden under international customary law. That the whole statute is also carelessly drafted is evidenced by article 2 itself. It calls the London Declaration of the Allies of January 5th, 1943, a "United Nations Declaration of January 5, 1943", making it a U.N. instrument while the United Nations were not founded until 1945. Not mentioned are the treaties with Germany of November 9, 1990 and of July 8, 1993 (there is no treaty of September 12th, 1990 as the statute reads) which provide the restitution of cultural property.

Apparently Russia 'discovered' new sources of public international law. The Soviet Union still knew its obligations and returned the treasures of the Dresden Gallery. Democratic Russia is going to confiscate again what was already taken fifty years ago, and has already exhibited some of these treasures, for a long time clandestinely withheld from the public, although - according to the Russian attitude - there was no reason for behaving like a thief.

Russia suffered severely from German occupation and plundering. How can this be compensated or how can co-operation (cp. Articles 14 et seq. of the statute) be guaranteed if Russia takes unilateral measures? There is a Wiesbaden Declaration of November 7, 1945 which states: "No historical grievance will rankle so long, or be the cause of so much justified bitterness, as the removal, for any reason, of a part of the heritage of any nation, even if that heritage may be interpreted as 'a prize of war'". The same is true for keeping such a prize of war.

Kurt Siehr, University of Zurich,
Assistant Editor of the International Journal of Cultural Property