‘The fiduciary duties that are enshrined in international law parallel private law fiduciary duties in important respects. Under international law, fiduciaries are obligated to carry out their commissions faithfully, manifesting due care and partiality to their beneficiaries interests. International law prohibits fiduciaries from abusing their positions of trust and confidence to secure special benefits from the cells at the expense of their beneficiaries. The South West Africa cases affirmed that fiduciaries under international law there a freestanding legal obligation to submit to international supervision. And the Nauru settlement suggests that the violation of fiduciary duties under international law may support traditional fiduciary remedies, including compensation and restitution.’ The Oxford Handbook of Fiduciary Law 2019, page 363.
Therefore, if an agent of an occupying power expropriates art and antiquities from an occupied state, and the artefacts are subsequently acquired by the museum, is the museum liable for restitution on the grounds of unconscionable receipt?
This is a question I will research in connection with a new book I am writing about transnational art and antiquities litigation. For more information please visit the art and antiquities page at www.ihtbar.com.
There is an inexact analogy with the removal of the Parthenon Marbles from Athens by Lord Elgin, who was Ambassador Extraordinary and Minister Plenipotentiary of His Britannic Majesty to the Sublime Porte of Selim III, Sultan of Turkey, because Greece at the time was part of the Ottoman Empire.
Under US law, the fiduciary duties owed by diplomats are enshrined in multiple bodies of law and are enforced through a variety of mechanisms. Like other public officials, diplomats subject common law fiduciary duties. The US State Department has also adopted regulations prohibiting diplomatic officers from engaging in certain activities that would violate the duty of loyalty, such as helping a foreign state evade US sanctions. When diplomats violate their fiduciary duties, the State Department can recall them from their posts, suspend or terminate their employment, and expose them to civil or criminal liability in the receiving state by withdrawing diplomatic immunity. In some cases, diplomats may even face criminal liability for violating the fiduciary duties, see further the Oxford Handbook of Fiduciary Law at page 361.