The principle of due respect for the sovereign right of every State to declare cultural property located in its territory as part of its natural patrimony, has gradually been recognised as a principle of public international law.
Under English law a person in possession of a chattel can bring an action in conversion against the person who wrongfully deprived him of that possession.
Under English principles of conflict of laws, the question of whether a foreign State is the owner of antiquities will be determined by the law of the lex situs of the antiquities when the immediate right to possession arose.
English courts, have no jurisdiction to entertain an action for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign state.
The lack of jurisdiction is not that of the courts of the forum but of the foreign state, which has no international jurisdiction to enforce its law outside its own territory, and the basis of the rule is that the courts of the forum will not exercise their own jurisdiction in aid of an attempt by the foreign state to act in excess of its own jurisdiction.
The fact that a provision is found within a foreign law which contains criminal sanctions, such as penalties and forfeiture, does not however mean that the provision itself is penal in nature.
The starting point in a claim asserting rights of ownership is the almost universal rule that title to moveables depends on the lex situs, and accordingly: the validity of the transfer of the tangible moveable and its effect on the proprietary rights of the parties thereto and of those claiming under them in respect thereof, are governed by the law of the country where the moveable is at the time of the transfer (lex situs) . A transfer of a tangible moveable which is valid and effective by the law of the country where the movable is at the time of the transfer is valid and effective in England.
Where a foreign State has acquired title under its law of property within its jurisdiction in cases not involving compulsory acquisition of title, there is no reason in principle why the English court should not recognise its title in accordance with the general principle.
Consequently, when a State owns property in the same way as a private citizen there is no impediment to recovery.
However, where the foreign State has sought to confiscate or attach private property, the Sate’s title will only be recognised in England if it reduced the property into its possession.
‘The distinction between the two categories of cases, those where the foreign State will be able to claim its property in England even if it has not reduced it into its possession, and those where it may not claim unless it has reduced the property into its possession, depends on the way in which it has acquired ownership.
If it has acquired title under public law by confiscation or compulsory process from the former owner then it will not be able to claim the property in England from the former owner or his successors in title unless it had possession. If it has taken the property into its possession and its claim will be treated as depending on recognition: if it has not had possession it will be seeking to exercise its sovereign authority …
[However, where a State] does not assert a claim based on its compulsory acquisition from private owners [and]asserts a claim based upon title to antiquities which form part of its national heritage, title conferred by [its own State] legislation … This is a patrimonial claim, not a claim to enforce a public law or to assert sovereign rights. We do not consider that this is within the category of case where recognition of title or the right to possess under the foreign law depends on the state having taken possession.’
Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd [2007] EWCA Civ 1374, paragraphs 148 and 149 of the leading judgment of Lord Phillips CJ.
‘[In] Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd [2007] EWCA … [the Court of Appeal held] first that a claimant could bring a cause of action in conversion based only on an immediate right to possession, without having a proprietary right as well. In determining the nature of Iran’s interest in the antiquities, the appellate court utilised a more functional or substantive approach and articulated the standard as:
“not the label which foreign law gives to the legal relationship, but its substance … The issue with which we are concerned is whether the rights enjoyed by Iran in relation to the antiquities equate to those that give standing to sue in conversion under English law.”
Thus, rather than looking exclusively to the literal terms of the Iranian law, the court considered the fundamental nature of property ownership, which consists of a bundle of individual rights, such as the right to transfer inter vivos or at death, to possess, to exclude, and to lease. It is whether an individual or entity possesses these rights that determines the nature of the interest in the property. The court concluded that Iran’s 1979 Legal Bill confers on the state both ownership and an immediate right to possession of newly discovered antiquities. … Because a foreign state does not have jurisdiction to enforce its laws outside its own territory, courts of a foreign state will not exercise its jurisdiction “in aid of an attempt by the foreign state to act in excess of its jurisdiction.” While acknowledging that English courts would not enforce the penal laws of another state, the court concluded that the vesting of state ownership in the 1979 Legal Bill was not penalbecause it was not retroactive and it did not deprive an owner of an existing interest in the artefacts. The Iranian law only determined the ownership of previously unowned antiquities. Recognising the need to distinguish ownership from export controls, and referring to several earlier cases that touched on national ownership of cultural objects, the court held that “when a state owns property in the same way as a private citizen there is no impediment to recovery.”
Whether Iran needed to have taken actual possession of the artefacts while they were in Iran in order to recover them in England depended on how it acquired ownership. If it acquired title by confiscation or compulsory process, then it could not recover the property unless it first had physical possession. However, Iran did not first have to have possession because Iran’s title was conferred by legislation, which the court called a “patrimonial” claim”. In reaching this conclusion, the court cited the outcomes both in Schulz and in R v Tokeley-Parry. Both parties accepted that a patrimonial claim is simply a claim for property and could be asserted by both individuals and states. The court further held that even if Iran’s ownership law were a public law, British courts are not barred from enforcing a public law unless it is against public policy to do so. In judging public policy, the court stated:
“in our judgement, there are positive reasons of policy why a claim by a state to recover antiquities which form part of its national heritage and which otherwise complies with the requirements of private international law should not be shut out by the general principle invoked by Barakat. Conversely, in our judgement it is certainly contrary to public policy for such claims to be shut out … There is international recognition that states should assist one another to prevent the unlawful removal of cultural objects including antiquities.
The court then cited international instruments to which the United Kingdom is a party, including the 1970 UNESCO Convention, the European Union’s Council Directive 93/7 on the return of cultural objects unlawfully removed from the territory of a member state, and the Commonwealth scheme for the protection of the material cultural heritage. While acknowledging that none of these legal instruments was directly applicable to this case, the court interpreted them as indicating ”international acceptance of the desirability of protection of the national heritage” and the need for mutual assistance among nations to protect that heritage. The court further recognized that if actual possession were required before a State could recover looted antiquities, as a practical matter such antiquities could never be recovered since such artefacts, by being looted directly from archaeological sites, are previously unknown and not part of a specific collection. The court thus concluded that it is British public policy to recognize the ownership claim of a foreign state to antiquities that are part of its cultural heritage.’ [The Oxford Handbook of International Cultural Heritage Law (2020) edited by Francesco Francioni and Ana Filipa Vrdoljak pages 212 to 214].
As a practising Barrister and Certified Mediator, I am developing Art and Cultural Heritage Litigation (including proceedings in the Intellectual Property Enterprise Court) and Mediation, as a niche practice area. My book, the ‘Contentious Trusts Handbook’ contains a practice note contributed by the distinguished Art Historian, Pandora Mather Lees (www.artonsuperyachts.com) entitled, ‘Art & Heritage Assets – Duties of Trustees’, andI am a member of the Institute of Art & Law in London, where I am studying for a Diploma in Art Law.See also my blogs:
Copyright – Copyright protection of Art | Carl’s Wealth Planning Blog
Moral Rights – Moral Rights of Artists | Carl’s Wealth Planning Blog
Protecting Cultural Heritage – Use of British soft power to protect Cultural Heritage in a conflict zone? – UK Review of Security, Defence, Development and Foreign Policy (March 2021) | Carl’s Wealth Planning Blog
Cultural Heritage Diplomacy – British cultural heritage diplomacy post-BREXIT | Carl’s Wealth Planning Blog
Does equity give teeth to international humanitarian law? –Does equity give teeth to international humanitarian law? | Carl’s Wealth Planning Blog
The state as a fiduciary? –The state as a fiduciary? | Carl’s Wealth Planning Blog
and the ‘Humanitarian Mediation’ page at www.diplomaticlawguide.com
– Humanitarian Mediation – Diplomatic Law Guide [or Google ‘Humanitarian Mediation’ and go to page 3 to find a link].