RIVISTA DI DIRITTO INTERNAZIONALE ISSN 0035-6158
Anno CIII Fasc. 2 - 2020
Alessandro Chechi
THE CASE OF THE CRIMEAN ART
TREASURE AND THE QUESTION
OF THE APPLICATION OF THE
UNESCO CONVENTION OF 1970
Estratto
ALESSANDRO CHECHI
THE CASE OF THE CRIMEAN ART TREASURE
AND THE QUESTION OF THE APPLICATION
OF THE UNESCO CONVENTION OF 1970
Abstract. — International cultural heritage-related disputes rarely entail uniquely
cultural issues. These disputes — just like any other international dispute — may involve
questions relating to other branches of the law. The case of the Crimean art treasure — 469
which is pending in the Netherlands between the Allard Pierson Museum, on the one hand,
and the Republic of Ukraine and four Crimean museums, on the other, and which concerns
a collection of archaeological objects exported by Ukraine to the Netherlands before the
unlawful annexation of Crimea by Russia — is one of such disputes. Dutch courts applied
the rules on the interpretation of treaties in order to establish the meaning of the 1970
UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import,
Export and Transfer of Ownership of Cultural Property and evaluate its relevance to the
case. The question at stake was, inter alia, whether the situation created by the non-return
of cultural objects at the end of the period of lawful temporary export fell within the scope
of the 1970 Convention. The Court of Appeal of Amsterdam gave a narrow interpretation
of the Convention and of the Dutch implementing legislation. The note discusses the
Court’s approach, which might have a deleterious impact on the sound settlement of the
dispute, and maintains that it did not accurately apply the rules stated in the Vienna
Convention on the Law of Treaties.
SUMMARY: 1. Introduction. — 2. The Case of the Crimean Art Treasure. — 3. The Judgments
of Dutch Courts in 2016 and 2019. — 4. A Critical Look at the 2019 Judgment in relation to
the Question of Interpretation of the UNESCO Convention of 1970. — 5. On the Relevance
and Applicability of the UNESCO Convention of 1970. — 6. Concluding Remarks.
1. Introduction. — The annexation of Crimea by Russia in 2014 has
This paper has been submitted to peer-review.
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been condemned as an unlawful act by the overwhelming majority of
States, because it constitutes a blatant violation of the fundamental
norms of customary international law prohibiting the use of force in
international relations 1. This article, however, focuses on only one of the
consequences of Ukraine’s loss of control of the Crimean peninsula 2,
namely the dispute pending in the Netherlands over a collection of
archaeological objects between the Allard Pierson Museum of the Uni-
versity of Amsterdam (APM), on the one hand, and the Republic of
Ukraine and four Crimean museums 3, on the other. More specifically,
this article critically examines the judgment rendered by the Court of
Appeal of Amsterdam in July 2019 4 with respect to two specific issues:
(i) the application of international law rules on treaty interpretation; and
(ii) the relevance and applicability of the applicable treaty rules on the
fight against the illicit trafficking in cultural property.
2. The Case of the Crimean Art Treasure. — By virtue of a number
of agreements concluded in 2013, the National Museum of History of
470 Ukraine and four Crimean museums loaned some 500 archaeological
objects to the APM for the exhibition “Crimea — the Golden Island in
the Black Sea”, which was held from 6 February 2014 to 31 August 2014.
These loan agreements stipulated that the APM would return the col-
lection to each of the lenders in a timely manner after the exhibition had
1 See General Assembly Resolution 68/262 of 27 March 2014 on the Territorial Integrity
of Ukraine, which affirmed the territorial integrity, sovereignty and independence of Ukraine,
and called upon States not to recognize the alteration in status of Crimea. A similar resolution
was presented for approval at the Security Council but was vetoed by Russia. The European
Union (EU) adopted restrictive measures against Russia in 2014, which were prolonged by a
decision of the European Council of 12 December 2019. For an overview of legal issues
relating to this conflict see TANCREDI, The Russian Annexation of the Crimea: Questions
Relating to the Use of Force, Questions of Int. Law, Zoom-out I, 2014, p. 5 ff.; and GRANT,
Annexation of Crimea, American Journal of Int. Law, vol. 109, 2015, p. 68 ff.
2 A range of international tribunals are dealing with claims relating to the annexation of
Crimea by Russia, including the International Court of Justice and the European Court of
Human Rights. See HILL-CAWTHORNE, International Litigation and the Disaggregation of
Disputes: Ukraine/Russia as a Case Study, Int. and Comparative Law Quarterly, vol. 68, 2019,
p. 779 ff.
3 These are the Tavrida Central Museum, the Kerch Historical and Cultural Preserve, the
Bakhchisaray History and Culture State Preserve of the Republic of Crimea, and the National
Preserve of Tauric Chersonesos.
4 Amsterdam Court of Appeal, 16 July 2019, case No. 200.212.377/01,
ECLI:NL:GHAMS:2019:2427 (hereinafter “2019 Judgment”). The judgements rendered by
Netherlands courts are available at https://uitspraken.rechtspraak.nl.
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ended. The export of the Crimean art treasure had been authorized by
the Ministry of Culture of the State of Ukraine, with a decision of 8 June
2013 5.
During the exhibition, the situation in Ukraine changed dramatically.
Following the ousting of Ukrainian President Viktor Yanukovych in
February 2014, the eastern part of Ukraine and the Crimean peninsula
were occupied by forces of the Russian Federation. The intervention was
followed by a referendum organized by the Supreme Council of the
Autonomous Republic of Crimea, in which a reported 97 per cent voted
in favour of joining Russia. Thus, Crimea became part of the Russian
Federation pursuant to an accession treaty of 18 March 2014. The
secession from Ukraine and accession to Russia are overwhelmingly
regarded as unlawful acts by the international community.
In the weeks following Crimea’s secession, the Ministry of Culture of
Ukraine requested the APM to return to Kiev the archaeological collec-
tion ahead of schedule, declaring that it was “a national treasure and
integral part of the cultural heritage of Ukraine protected by law” 6.
Likewise, the four museums of Crimea warned the Dutch museum that 471
the objects had to be returned to them after the end of the exhibition, not
only because the loan agreements had to be complied with, but also
because such objects are part of their property and are “[t]he unique
monuments of the Ancient culture found in the Crimean land” 7.
In the face of these conflicting requests, the APM maintained a
neutral position: on the one hand, it returned to the National Museum of
History of Ukraine the 19 objects that had been borrowed from Kiev; on
the other, it refused to return the objects lent by the Crimean museums 8
because it was uncertain as to whether the collection had to be returned
to Ukraine, i.e., the State that had authorized their export and that it is
regarded by the international community as the only one which can
legitimately exercise sovereignty over Crimea, or to the four Crimean
museums, the entities that signed the loan agreements and that today,
however, are under the control of the Russian Government.
The parties made a few attempts to negotiate a settlement, to no
5 An extension of the custody until 20 September 2014 was laid down in further
agreements of 6 February 2014.
6 2019 Judgment, cit., p. 4.
7 Ibidem, p. 5.
8 Ibidem.
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avail. As a result, the dispute was brought to court in the Netherlands in
November 2014 by the four Crimean museums against the University of
Amsterdam, acting on behalf of the Allard Pierson Museum 9. The
Republic of Ukraine intervened in the proceedings. On the one hand, the
Crimean museums requested a declaration that APM must return the art
collection to them. On the other hand, Ukraine urged the Dutch judiciary
to declare that the APM must return all artefacts to Kiev. In addition,
APM demanded that the court rule that it was not liable for not
complying with the return obligation set out in the loan agreements,
given the uncertainty as to the identity of the rightful owner of the art
treasure. The Dutch museum declared itself ready to surrender the
collection to the party which would be held by the Court to be entitled
to it. The question put before Dutch courts was thus whether the
archaeological collection at stake had to be returned to the lending
museums, under the terms of the loan agreements containing guarantees
of its timely return at the end of exhibition, or to Ukraine, as the State
that had authorized the temporary export from the territory that was
472 under its sovereignty when such loan agreements were concluded.
3. The Judgments of Dutch Courts in 2016 and 2019. — With a
decision of December 2016, the Amsterdam District Court ordered APM
to return the disputed collection to the Republic of Ukraine for the
reason that it belonged to its cultural heritage 10. The Crimean museums’
claim that the treasure was part of the heritage of the Autonomous
Republic of Crimea 11 was rejected, because Crimea was part of Ukraine
at the time the artefacts were exported. Furthermore, the Court ruled
that Russia’s annexation of Crimea represented a “material change in
9 The jurisdiction of Dutch courts was not disputed, because the Allard Pierson Museum
had its place of business in the Netherlands (see Article 2, paragraph 1, of Council Regulation
(EC) 44/2001 of 22 December 2000, on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters (Brussels I Regulation)) and because the collection
was located in the Netherlands (see Article 1011(a) of the Dutch Code of Civil Procedure).
10 Amsterdam District Court, 14 December 2016, case No. C/13/577586/HA ZA 14-1179,
ECLI:NL:RBAMS:2016:8264 (hereinafter “2016 Judgment”), para. 4.8. The Court did not
render a decision on the ownership of the collection pursuant to Article 1012 of the Dutch
Code of Civil Procedure, which provides that ownership of a cultural object that is subject to
a return request by a State Party to the UNESCO Convention of 1970 (infra note 13 and
related text) should be determined after its return by the courts of the requesting State in
accordance with its law. Ibidem, paras. 4.16-4.17.
11 The Autonomous Republic of Crimea had autonomous status within Ukraine since its
foundation in the early 1990s.
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circumstances” justifying the Dutch museum’s refusal to hand over the
artefacts under the terms of the loan agreement 12. Notably, the Court
held that, although it had been exported legitimately from Ukraine, the
collection must be characterized as an “illicit import” within the meaning
of the UNESCO Convention on the Means of Prohibiting and Preventing
the Illicit Import, Export and Transfer of Ownership of Cultural Property
of 1970 (hereinafter “1970 Convention”) 13 because it remained in the
Netherlands following the expiry of the export permits 14.
The ruling of the District Court was appealed 15. The Amsterdam
Court of Appeal rendered an interim judgment on 16 July 2019. It
acknowledged that it was unclear to APM to whom the Crimean treasure
should be returned after the secession of Crimea and, as a result,
declared that APM was entitled not only to suspend its obligation to
return the collection, but also to keep it in custody until the conclusion of
the trial 16. The Court of Appeal based its decision on the law of Ukraine,
being the law applicable to the loan agreements as elected by the
parties 17. Moreover, in order to decide to whom the artefacts had to be
handed over and whether APM was to pay compensation to the Crimean 473
museums as a result of the delayed restitution of the collection, the Court
of Appeal requested further information on the law of Ukraine from the
parties regarding, on the one hand, the ownership right claimed by
Ukraine and, on the other, the “right of operational management”
claimed by the Crimean museums 18. The reason was twofold. First, the
explanations and opinions submitted by the parties diverged and contra-
dicted each other. Second, pursuant to Dutch private international law,
the existence or non-existence of the rights claimed by the parties (and
their legal consequences) had to be assessed in accordance with the law
of Ukraine 19.
More importantly for the purposes of the present note, the Court of
122016 Judgment, cit., paras. 4.23 ff.
13Adopted on 14 November 1970, entered into force on 24 April 1972.
14 2016 Judgment, cit., paras. 4.9, 4.13.
15 For a comment on the 2016 Judgment see CAMPFENS, Whose Cultural Heritage?
Crimean Treasures at the Crossroads of Politics, Law and Ethics, Art Antiquity and Law, vol.
XXII, n. 3, 2017, p. 193 ff.
16 2019 Judgment, cit., paras. 4.9-4.10.
17 Ibidem, para. 4.7.
18 Ibidem, paras. 4.44.1-4.47.
19 Ibidem, paras. 4.41-4.43.
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Appeal dwelled on the question whether the Dutch Heritage Act 20
applied to the situation where an object that has been exported lawfully
with the issuance of an export licence has not been returned to the State
of export within the time limits established in that export licence. On this
crucial question, the Court of Appeal reversed the first instance decision
of 2016 and held that the prolonged stay of the Crimean treasure in the
Netherlands was not a situation covered by the 1970 Convention. In the
Court’s view, as it aims to fight against such illegal activities as theft,
clandestine excavation and illicit export (situations which were not at
stake in the present case), the 1970 Convention was irrelevant 21. By so
doing the Court of Appeal rejected the broad interpretation of the Dutch
Heritage Act advocated by Ukraine 22.
The Court of Appeal also ruled against the applicability of EU
Directive 2014/60 of 15 May 2014 on the return of cultural objects
unlawfully removed from the territory of a Member State 23 and of the
UNIDROIT Convention on Stolen and Illegally Exported Cultural Ob-
jects of 1995 (hereinafter “1995 Convention”) 24. The Ukrainian State
474 invoked these legal instruments for the reason that they explicitly provide
that the failure to return a cultural object in accordance with the terms of
an export permit is tantamount to an act of illicit exportation 25. First, the
Court did not consider the Directive and the 1995 Convention to be of
20 The Cultural Heritage Preservation Act of 1 February 1984, which was revised in 2009
to ensure the implementation of the 1970 Convention in the Netherlands, which ratified this
treaty in 2009. It is beyond doubt that the conflicting claims of Ukraine and the four Crimean
Museums fell within the scope of the 1970 Convention. First, the Netherlands and Ukraine
ratified this treaty (on 17 July 2009 and on 28 April 1988, respectively); it therefore was in force
for Ukraine — including in Crimea — and in the Netherlands when the collection was
exported. Second, the artefacts in dispute are “cultural property” within the meaning of Article
1 of the 1970 Convention. Third, the purpose of the loan agreements concluded by the parties
in dispute was the realization of an art exhibition.
21 2019 Judgment, cit., paras. 4.21-4.23.
22 Ibidem, para. 4.22.
23 This repealed and replaced Directive 93/7 of 27 March 1993.
24 Adopted on 24 June 1995, entered into force on 1 July 1998. UNIDROIT (“Interna-
tional Institute for the Unification of Private Law”) is an independent intergovernmental
organization which aims to harmonizing private law as between States and groups of States and
to formulate uniform law instruments (see www.unidroit.org).
25 See Article 5, paragraph 2, of the 1995 Convention (“[a] cultural object which has been
temporarily exported from the territory of the requesting State, for purposes such as exhibi-
tion, research or restoration, under a permit issued according to its law regulating its export for
the purpose of protecting its cultural heritage and not returned in accordance with the terms
of that permit shall be deemed to have been illegally exported”) and Article 2, paragraph 2 (b),
of Directive 2014/60 (a cultural object can be deemed “unlawfully removed from the territory
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any significance for the case in hand, because Article 6.3 of the Dutch
Heritage Act did not expressly state that cultural objects that are not
returned at the end of the period of lawful temporary export must be
deemed illegally exported or illegally imported 26. Second, the Court
emphasised that the scope of these instruments is limited, in that the
Directive applied to return proceedings involving EU Member States 27,
whereas the 1995 Convention had not been ratified by the Netherlands 28.
4. A Critical Look at the 2019 Judgment in relation to the Question
of Interpretation of the UNESCO Convention of 1970. — One of the key
points of contention between Ukraine and the four Crimean museums
was whether the stay of the collection in the Netherlands after the expiry
of the time limits established in the export licence was tantamount to an
illicit import pursuant to Article 6.3 of the Dutch Heritage Act. This
Article provides that it is prohibited to bring a cultural object into the
Netherlands which: (i) has been brought outside the territory of a
contracting State of the 1970 Convention in violation of the rules and
procedures established by that State pursuant to the 1970 Convention; or 475
(ii) has been stolen in a contracting State of the 1970 Convention.
The District Court concluded that the Dutch Heritage Act and the
1970 Convention had to be interpreted broadly so that the term “illicit
import” encompasses the situation where an object is not returned within
the time limits established in an export licence. Contrariwise, the Court
of Appeal adopted a narrow interpretation. It held that, considering “the
meaning that the words ‘export’ and ‘import’ have in common parlance”,
the key provisions of the 1970 Convention on the unlawful import, export
and transfer of ownership of cultural property only apply to “cases in
which cultural objects are transferred illegally from one country to
another” 29. In the Court’s view, “the present case does not constitute an
illegal export” of cultural objects 30.
It is here submitted that the Court of Appeal has come to such a
of a Member State” when it is not “returned at the end of a period of lawful temporary
removal”).
26 2019 Judgment, cit., para. 4.24
27 Ibidem, paras. 4.25-4.29.
28 Ibidem, paras. 4.30-4.32.
29 Ibidem, para. 4.20. See also paras. 4.21-4.34.
30 Ibidem, para. 4.23.
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narrow interpretation of the Dutch Heritage Act and of the 1970 Con-
vention too hastily.
At this juncture, it is important to note that the Court of Appeal
rightly pointed out that the interpretation of the 1970 Convention should
be carried out according to the 1969 Vienna Convention on the Law of
Treaties (hereinafter “Vienna Convention”) 31. Article 31, paragraph 1,
of the Vienna Convention sets forth that a treaty “shall be interpreted in
good faith in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in light of its object and purpose”.
In addition, Article 31, paragraph 3, specifies that treaties should be
interpreted taking into account, together with the context, “any subse-
quent agreement between the parties regarding the interpretation of the
treaty or the application of its provisions” (Article 31, paragraph 3 (a)),
“any subsequent practice in the application of the treaty which estab-
lishes the agreement of the parties regarding its interpretation” (Article
31, paragraph 3 (b)), and “any relevant rules of international law appli-
cable in the relations between the parties” (Article 31, paragraph 3 (c)).
476 Where the interpretation according to the provisions of Article 31 needs
confirmation or determination since the meaning is ambiguous or ob-
scure, or leads to a manifestly absurd or unreasonable result, recourse
may be had to supplementary means of interpretation under Article 32.
These means include the preparatory work of the treaty (travaux
préparatoires) and the circumstances of its conclusion.
The judgment of the Court of Appeal can be criticised in light of such
parameters for the following reasons.
The first reason is that the Court of Appeal did not take adequately
into account the “object and purpose” of the 1970 Convention pursuant
to Article 31, paragraph 1, of the Vienna Convention. It should be noted
that the words “object and purpose” at the end of Article 31, paragraph
1, are a means of shedding light on the ordinary meaning of the term that
is being interpreted 32. The 1970 Convention was designed to fight against
the impoverishment of the cultural heritage of each country by means of
international co-operation, preventive measures and restitution proce-
31 Adopted on 23 May 1969, entered into force on 27 January 1980. It is generally
recognized that the rules on interpretation of treaties of the Vienna Convention reflect
pre-existing customary international law and that they apply also to treaties concluded before
its entry into force. GARDINER, Treaty Interpretation, Oxford, 2010, p. 12.
32 GARDINER, ibidem, p. 190.
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dures. It mainly operates by imposing obligations on States Parties 33. In
the present context, it is important to emphasize that Article 3 of the 1970
Convention provides that the “import, export or transfer of ownership of
cultural property effected contrary to the provisions adopted under this
Convention by the States Parties thereto, shall be illicit”. This article does
not explicitly address the situation where an object is not returned within
the time limits set forth in an export licence. However, the reference to
the national laws of States Parties in this article becomes relevant when
taken together with Article 6, according to which States Parties under-
take to (a) “introduce an appropriate certificate in which the exporting
State would specify that the export of the cultural property in question is
authorized”, (b) “prohibit the exportation of cultural property from their
territory unless accompanied by the above-mentioned export certificate”,
and (c) “publicize this prohibition by appropriate means [...]”. It can thus
be argued that the words “shall be illicit” in Article 3 indicate a legally
binding obligation of a State Party to the 1970 Convention to regard as
unlawful under its national law the import of cultural property effected
477
contrary to the provisions adopted by another State Party. It follows that
the prohibition contained in Article 6.3 of the Dutch Heritage Act,
according to which it is prohibited to bring a cultural object into the
Netherlands which has been brought outside the territory of a contract-
ing State in violation of the stipulations established by that State pursu-
ant to the 1970 Convention, must be interpreted and applied in light of
the law of Ukraine, as the applicable law at the time of the loan
agreement. Regarding the temporary export of cultural objects, the
relevant law of Ukraine stipulates that an artefact must be considered
illicitly exported if it has not been returned to Ukraine within the time
period mentioned in the export permits 34. However, the Appeal Court
rejected the view that the law of the country of export of cultural objects
is decisive for the interpretation of the law of the country of temporary
33 States Parties are required to: set up specific services for the protection of cultural
property (Article 5); establish rules in conformity with the ethical principles set forth in the
Convention (Article 6 (e)); adopt measures to discourage State-controlled collecting institu-
tions from acquiring property illegally exported (Article 7 (a)); prohibit the import of stolen
cultural property (Article 7 (b)(i)); return illegally removed antiquities (Article 7 (b)); impose
penalties or administrative sanctions (Article 8); restrict the movement of cultural property
illegally removed from any State Party (Article 10 (a)).
34 2016 Judgment, cit., para. 4.15, and 2019 Judgment, cit., para. 4.33.
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importation 35. Such view had instead been endorsed by the District
Court, according to which the exclusion from the scope of the 1970
Convention of the situation created by the non-return of objects tempo-
rarily exported abroad would be contrary to the purpose of such treaty 36.
A number of experts have validated this interpretation. Patrick O’Keefe
maintained that: “the effect of Articles 3 and 6 when taken together
would suggest that a State Party to the (1970) Convention is required to
regard as unlawful, in its national law, the import of goods exported from
another State Party contrary to that State’s export provisions” 37. Like-
wise, Ridha Fraoua considered that Article 3 calls on States Parties to
define as “illicit” acts which are made unlawful by the provisions of
national laws adopted by another State under the 1970 Convention 38.
The second reason why the interpretation of the 1970 Convention
given by the Court of Appeal may be criticized, is that it did not consider
the circumstances existing at the time of its conclusion, which should be
regarded as “supplementary means of interpretation” under Article 32 of
the Vienna Convention. In this respect, the “supplementary means”
478 envisaged by Article 32 — “the preparatory work of the treaty” and “the
circumstances of its conclusion” 39 — can be used to determine the
correct meaning of a treaty provision “when the interpretation according
to Article 31 [...] leads to a result which is manifestly absurd or unrea-
sonable”. Regarding the circumstances of the conclusion of the 1970
Convention, it must be acknowledged that in 1970 the fight against the
illicit trafficking in cultural heritage items was still in its infancy. There-
fore, it can be argued that the drafters of this treaty overlooked or failed
to declare explicitly the unlawfulness of the situation created by the
non-return of cultural objects after the expiration of the export license
relating to them. However, as demonstrated, this situation is covered as
a result of the combined application of Articles 3 and 6 of the 1970
Convention. It can therefore be argued that, by rejecting the contention
35 2019 Judgment, cit., para. 4.33.
36 2016 Judgment, cit., paras. 4.9-4.10.
37 O’KEEFE, Commentary on the UNESCO 1970 Convention on Illicit Traffic2, Leicester,
2007, p. 42.
38 FRAOUA, Convention concernant les mesures à prendre pour interdire et empêcher
l’importation, l’exportation et le transfert de propriété illicites des biens culturels, UNESCO Doc.
CC-86/WS/40, 1986, p. 57.
39 The Court of Appeal looked only at the travaux préparatoires of the 1970 Convention:
see 2019 Judgment, cit., para. 4.21.
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of the Ukrainian Government as to the illicit nature of the prolonged
permanence in the Netherlands of the art treasure, the Court of Appeal
adopted an “absurd or unreasonable” interpretation.
Thirdly, it appears that the Court of Appeal failed to properly
construe the terms “export” and “import” contained in the 1970 Con-
vention. The Court stated that the “wording, the context and the purpose
of the 1970 UNESCO Convention do not provide sufficient points of
reference for [...] a broad interpretation” of the concepts of “unlawful
export and import in the sense that also in the event that a cultural object
has been brought outside the country in accordance with an export
licence, but is subsequently not staying in the host country in accordance
with the export licence, is to be regarded as an unlawful export based on
which the country of origin may claim the items” 40. The Court reached
the conclusion that the relevant provisions of the 1970 Convention only
pertain to the cases in which cultural objects are transferred illegally from
one country to another in light of “the meaning that the words ‘export’
and ‘import’ [in the 1970 Convention] have in common parlance”. This
approach is flawed. By using the expression “common parlance”, it seems
479
that the Court interpreted the terms “export” and “import” as under-
stood by the layman. However, according to the Vienna Convention, the
test is not what an ordinary person would understand a term to mean.
Rather, reference should be made to the understanding of someone who
has knowledge of the field, namely a person reasonably informed on the
subject matter of a treaty 41.
The fourth reason relates to two legal instruments — the 1995
Convention and Directive 2014/60 — that have been adopted after the
entry into force of the 1970 Convention. Both instruments address the
problem of the illicit trade in cultural objects and, as said, regulate the
situation created by the non-return of objects temporarily exported
abroad 42. These instruments are not applicable to the case under
consideration. On the one hand, neither the Netherlands nor Ukraine
has ratified the 1995 Convention (however, having signed it, the Nether-
lands is bound “to refrain from acts which would defeat the object and
purpose of the treaty” in accordance to Article 18, paragraph 1, of the
Vienna Convention). On the other hand, only the Netherlands, as a EU
40 2019 Judgment, cit., para. 4.21.
41 GARDINER, supra note 31, p. 173 f.
42 See supra note 25 and related text.
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Member State, is bound to comply with the Directive (Ukraine is not a
EU Member State). Nonetheless, it can be argued that the Court of
Appeal should have taken into consideration the 1995 Convention and
Directive 2014/60 in its interpretation of the terms “illicit import” and
“illicit export” used in the 1970 Convention pursuant to Article 31,
paragraph 3 (c), of the Vienna Convention as “relevant rules of interna-
tional law applicable in the relations between the parties” — whether the
Netherlands and Ukraine were or not bound by these legal instru-
ments 43. The main reason is that courts and tribunals, national and
international, may, when applying the rules of the Vienna Convention,
refer to the use of a particular term in other treaties on the same subject
matter in order to properly understand the “ordinary meaning” of the
term at stake 44. Furthermore, it can be contended that the Court of
Appeal, while engaging in the interpretation of the scope of the 1970
Convention, failed to take into account the developments of international
cultural heritage law occurred since the time of its conclusion 45. In other
words, the Court paid no heed to the fact that the scope of the terms
480 “illicit import” and “illicit export” had been broadened by the 1995
Convention and Directive 2014/60 to cover the situation where an object
is not returned within the time limits established in an export licence.
5. On the Relevance and Applicability of the UNESCO Convention
of 1970. — The foregoing discussion offers considerable evidence that, in
light of the international law rules on treaty interpretation, the absence
43 Of course, neither the 1995 Convention nor Directive 2014/60 can be considered as
subsequent agreements in the sense of Article 31, paragraph 3 (a), of the Vienna Convention
for the reason that they have not been adopted to provide an “interpretation” or to “clarify the
meaning of” the 1970 Convention or to ensure the “application of its provisions”. See
International Law Commission, Draft Conclusions on Subsequent Agreements and Subsequent
Practice in Relation to the Interpretation of Treaties, with Commentaries, points 9, 13 and 14 of
the commentary to Conclusion 4, in Report of the International Law Commission, 2018, UN
Doc. A/73/ 10, p. 30 f.
44 MCLACHLAN, The Principle of Systemic Integration and Article 31(3)(c) of the Vienna
Convention, Int. and Comparative Law Quarterly, 2005, p. 279 ff. at p. 283, and GARDINER,
supra note 31, pp. 281 f., 283 f.
45 On the relevance of the developments of international law under Article 31, paragraph
3 (c), of the Vienna Convention see GARDINER (supra note 31, pp. 289-291), who exemplifies
this issue by referring to the following cases: Permanent Court of Arbitration, Award of 24 May
2005 on the case Iron Rhine (“IJzeren Rijn”) Railway (Belgium/Netherlands), in Reports of
International Arbitral Awards, vol. XXVII, p. 66, para. 58 f.; and International Court of Justice,
Judgment of 25 September 1997 on the case concerning the Gabčíkovo-Nagymaros Project
(Hungary/Slovakia), I.C.J. Reports, 1997, para. 140.
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of a specific provision in the 1970 Convention explicitly covering the
situation where an object is not returned within the time limits estab-
lished in an export licence does not exclude the relevance of this treaty
as applicable law in the dispute under consideration. In this regard, it is
worth considering the argument raised by the Crimean museums before
the District Court and the Court of Appeal that the 1970 Convention was
not applicable to the dispute for the reason that it contains provisions
that are vague or devoid of proper legal obligations binding on States.
This argument, which was likely invoked to reduce the dispute to a mere
question of contractual performance under the terms of the loan agree-
ments, is misconceived. The reason is fourfold.
First, pleading the ambiguity and vagueness of the 1970 Convention
as a reason to dismiss its relevance and applicability is disingenuous. This
treaty certainly has a number of limits: it is not retroactive; it does not
deal with the determination of property titles; it admits no private action;
it contains a restitution procedure which applies only to objects inven-
toried in museums or similar institutions; it makes no reference to
limitation periods; and it does not deal with the question of the impact of
481
its rules on domestic laws concerning the treatment of bona fide purchas-
ers. These shortcomings are due to the fact that the States that partici-
pated in the negotiations had different understandings of the problem of
the illicit trade in cultural property, as well as diverging interests and
objectives in the domain of cultural heritage 46. In other words, the 1970
Convention — just as any other international treaty — is affected by
shortcomings that are the result of the compromises reached during
negotiations. This, however, is not a reason for dismissing its legal
relevance and applicability in practice.
Second, it cannot be disputed that the 1970 Convention sets out
obligations relating to: (i) the prevention of the illicit trade in cultural
property; (ii) the restitution of wrongfully removed cultural objects; and
46 In this sense see the distinction between “market” States (also called “importing”
States: these are countries poor in cultural assets but wealthy in economic terms, and are the
home of affluent collectors, museums, dealers and auction houses that can invest in foreign art,
such as the United States, the United Kingdom and Switzerland) and “source” States (also
called “exporting” States: these are the countries which are rich in cultural materials and which
focus on the protection and on the integrity of the national cultural heritage, such as Italy, Peru
and India). Although many States may fall into both groups, these categories reflect the
dynamics of the international art trade. The distinction between “source” nations and
“market” nations was depicted by MERRYMAN, Two Ways of Thinking about Cultural Property,
American Journal of Int. Law, 1986, p. 831 ff.
NOTE E COMMENTI
ALESSANDRO CHECHI
(iii) international cooperation. With respect to restitution, Article 7 of
the 1970 Convention establishes that the “States Parties to this Conven-
tion undertake: (b)(i) to prohibit the import of cultural property stolen
from a museum or a religious or secular public monument or similar
institution in another State Party to this Convention after the entry into
force of this Convention for the States concerned, provided that such
property is documented as appertaining to the inventory of that institu-
tion; (ii) at the request of the State Party of origin, to take appropriate
steps to recover and return any such cultural property imported after the
entry into force of this Convention in both States concerned, provided,
however, that the requesting State shall pay just compensation to an
innocent purchaser or to a person who has valid title to that property” 47.
Concerning the obligations about international cooperation, Article 13
provides that the “States Parties to this Convention also undertake,
consistent with the laws of each State: [...] (b) to ensure that their
competent services co-operate in facilitating the earliest possible restitu-
tion of illicitly exported cultural property to its rightful owner; (c) to
482 admit actions for recovery of lost or stolen items of cultural property
brought by or on behalf of the rightful owners”. Notably, as demon-
strated by available empirical and judicial evidence, the international
cooperation fostered by the 1970 Convention 48 has led to the discovery
and disruption of various trafficking networks and the return of numer-
ous cultural objects 49.
Third, and consequently, the argument under consideration runs
against the fact that Ukraine and the Netherlands have ratified the 1970
Convention and have undertaken to be bound by it — just like the other
States that have ratified this treaty, and which include many “market”
States 50. Indeed, as demonstrated at trial, both Ukraine and the Neth-
47 Of course, Article 7 cannot be applied in the present case as the Crimean treasure had
not been stolen.
48 Concerning the obligations about international cooperation see also Article 9 (which
calls upon States Parties to participate in concerted international efforts to protect cultural
patrimony in jeopardy from pillage) and Article 15 (which stipulates that States Parties can
enter into bilateral or multilateral agreements).
49 See e.g. the cases of Giacomo Medici (WATSON, TODESCHINI, The Medici Conspiracy,
New York, 2006), Jonathan Tokeley-Parry and Frederick Schultz (ULPH, SMITH, The Illicit Trade
in Art and Antiquities, Oxford, 2012, pp. 93-95), and Subhash Kapoor (HARRISON, US Charges
Added to Dealer Kapoor’s Rap Sheet, Institute of Art and Law Blog, https://ial.uk.com/2019/
11).
50 As of writing, the 1970 Convention has been ratified by 140 States.
NOTE E COMMENTI
CRIMEAN ART TREASURE
erlands have enacted (or revised) legislation to ensure the implementa-
tion of this non-self-executing treaty at the domestic level. According to
the principle of pacta sunt servanda, as codified in Article 26 of the
Vienna Convention, “[e]very treaty in force is binding upon the Parties to
it and must be performed by them in good faith”.
Fourth, it must be noted that the 1970 Convention has long begun to
reconfigure the attitude of art market players beyond States Parties. In
effect, the year “1970” is now widely accepted as a standard “cut-off
date”. As a result, most art trade businesses tend not to deal with
artworks that have entered the market after 1970 and are not accompa-
nied by export certificates or other documents proving their licit prov-
enance. The reason is that such objects are hard to sell. Another reason
is that operational, reputational and legal risks may arise when dealing
with objects having an obscure or dubious provenance. In the same vein,
museums, facing a spate of bad publicity, have begun to tighten up
internal policies regarding provenance in order to avoid the same risks.
Therefore, despite its non self-executing character, the 1970 Convention
is currently being implemented at the domestic level not only by national 483
enforcement bodies, but also by art trade professionals 51.
6. Concluding Remarks. — This note outlines the narrow interpre-
tation of the 1970 Convention given by the Amsterdam Court of Appeal
in relation to the Crimean art treasure disputed by Ukraine and four
Crimean museums. It highlights that the interpretative criteria of the
Vienna Convention and the elements of international practice support
the conclusion that: (i) a cultural object not returned at the end of the
period of lawful temporary export for exhibition purposes must be
deemed illegally exported and illegally imported under the 1970 Con-
vention; and (ii) the State from whose territory a cultural object origi-
51 BELTRAMETTI, MARRONE, Market Responses to Court Rulings: Evidence from Antiquities
Auctions, Journal of Law and Economics, vol. 59, 2016, p. 913 ff. at p. 914; MANACORDA,
CHAPPELL, From Cairo to Vienna and Beyond: Contemporary Perspectives on the Dialogue
About Protecting Cultural Artefacts from Plunder, in Crime in the Art and Antiquities World
(Manacorda and Chappell eds.), New York, 2011, p. 1 ff. at p. 8; FRIGO, Ethical Rules and Codes
of Honor Related to Museum Activities: A Complementary Support to the Private International
Law Approach Concerning the Circulation of Cultural Property, Int. Journal of Cultural
Property, vol. 16, 2009, p. 49 ff. at p. 53; GILL, Context Matters: “Museums and the Looted
World”, Journal of Art Crime, 2009, p. 43 ff. at p. 43; and MELIKIAN, Antiquities, With a Proven
Record, Drive Auction Market, The New York Times (14 June 2013).
NOTE E COMMENTI
ALESSANDRO CHECHI
nates is the titleholder of the claim for its restitution or return, if that
object remains abroad in breach of its legislation.
As a final point, it is worth emphasising that another treaty adopted
by UNESCO points to the conclusion that the Crimean treasure should
be returned to the State of Ukraine. This is the Convention for the
Protection of Cultural Property in the Event of Armed Conflict of 1954
(hereinafter “1954 Convention”) 52, which, however, has not been men-
tioned in the course of the proceedings over the Crimean treasure, at
least thus far. As it is well known, the 1954 Convention provides that in
the event of an armed conflict States Parties must inter alia prohibit,
prevent and, if necessary, stop any form of theft, pillage, or misappro-
priation of cultural property 53. In the event that an exportation of
cultural property from occupied territories occurs, States (whether or not
involved in the conflict) must return it pursuant to Article I of the
Protocol to the 1954 Convention (hereinafter “First Protocol”) 54. Spe-
cifically, Article I of the First Protocol provides that wrongfully removed
objects should be returned only “at the close of hostilities”. The dispute
484 over the Crimean treasure must be seen in light of these provisions
because the situation of its overdue return cannot be severed from the
unlawful annexation of Crimea by Russia. In other words, given the
continuing unlawful military occupation of the Crimean peninsula by
Russia and the ongoing conflict in the Eastern part of Ukraine 55, the
treasure should not be returned to the Crimean museums. One reason is
that the restitution of the treasure before the end of the hostilities by
APM (a State-controlled museum) would bring about a violation of the
First Protocol by the Netherlands. Another reason is that Ukraine would
lose the collection if it was surrendered by APM to the Crimean muse-
ums. In effect, the collection would come under the control of the
Russian Federation as soon as it returns to Crimea, by virtue of a law
passed by the Russian legislator in 2015, which states that museum
collections in Crimea are to be included in the national museum registry
52 Adopted on 14 May 1954, entered into force on 7 August 1956. It was ratified on 14
October 1958 by the Netherlands and on 6 February 1957 by Ukraine.
53 Article 4, paragraph 3.
54 Protocol to the Convention for the Protection of Cultural Property in the Event of
Armed Conflict, adopted on 14 May 1954. It was ratified on 14 October 1958 by the
Netherlands and on 6 February 1957 by Ukraine.
55 Two breakaway territories formed in eastern Ukraine with Russian military assistance:
the Donetsk People’s Republic and Lugansk People’s Republic.
NOTE E COMMENTI
CRIMEAN ART TREASURE
of the Russian Federation 56. In addition, the return of the collection to
the four Crimean museums could be considered a form of acquiescence
by the Netherlands in the unlawful dismemberment of Ukraine’s terri-
tory. The establishment of the current administration in Crimea and the
de facto regimes in Eastern Ukraine came into existence as a result of a
breach of a peremptory norm of international law prohibiting the use of
force. As a matter of international law, States are bound by the principle
ex iniuria ius non oritur, i.e. by the obligation not to recognize situations
brought about through the illegal use of force against the sovereignty and
territorial integrity of a country 57. Ukraine has therefore the right to see
its territorial integrity respected, not only against forcible actions, such as
the Russian intervention, but also against all other actions that might
undermine its territorial integrity. This means that States and interna-
tional organizations must refrain from any act of recognition of Russia’s
sovereignty over Crimea and from any act of an economic, political,
diplomatic or commercial nature which would imply such a recogni-
tion 58. Consequently, the Netherlands would be responsible under
international law, if APM returns the collection to the four Crimean
485
museums before the resolution of the conflict.
56 CAMPFENS, TARSIS, Cri-me-a-river! Crimean Gold in the Crosshairs of Geopolitics,
International Foundation for Art Research (IFAR) Journal, vol. 18, 2017, p. 36 ff. at p. 44.
57 This principle is explicitly mentioned in General Assembly Resolution 68/262 (supra
note 1), which calls upon States, international organizations and specialized agencies “to refrain
from any action or dealing that might be interpreted as recognizing any […] altered status [of
Crimea]” (para. 6). The same principle is also set forth in the Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among States in accordance
with the Charter of the United Nations (General Assembly Resolution 2625 (XXV), 24 October
1970), and in the Resolution on the Definition of Aggression (General Assembly Resolution 3314
(XXIX), 14 December 1974). The International Court of Justice has affirmed this principle in
a number of pronouncements, including the advisory opinions of 21 June 1971 concerning the
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports, 1971, p. 54, para.
119, and of 9 July 2004 concerning the Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, I.C.J. Reports, 2004, p. 200, para. 159. On this issue see LAGERWALL,
Le principe ex iniuria ius non oritur en droit international, Bruxelles, 2016, and SALERNO,
L’obbligo di non riconoscimento di situazioni territoriali illegittime dopo il parere della Corte
internazionale di giustizia sulle Isole Chagos, Rivista, 2019, p. 729 ff.
58 MILANO, The Non-Recognition of Russia’s Annexation of Crimea: Three Different Legal Ap-
proaches and One Unanswered Question, Questions of Int. Law, Zoom-out I, 2014, p. 35 ff., p. 43.
