Does International Law have an Effective Framework to Address the Looting of Cultural Property as Seen in Ukraine?

Brenna Keane April, 2023

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The Situation in Ukraine

Russian forces systematically looted Ukrainian cultural objects from museums, churches, and archeological sites during the invasion of Kherson, Mariupol, Melitopol, and Kakhovsky.[1] Art experts suggest this may be the “single biggest collective art heist since the Nazis.”[2] Already, thousands of pieces of art, rare books, artifacts, religious icons, and historical documents are missing and over 230 cultural sites are damaged or destroyed. [3] The United Nations Educational, Scientific and Cultural Organization (UNESCO) is listing stolen items and training border officials to recognize stolen items.[4]

Notably, looters stole around 10,000 works out of 14,000 from the Kherson Regional Art Museum.[5] The manager spent thirty-six hours barred in the museum until Russian forces packed everything into trucks under the direction of art experts.[6] At the beginning of the invasion, museum staff hid the collection in the basement to try to prevent looting, but collaborators betrayed the location.[7] Stolen paintings from the museum are already in the Central Taurida Museum in Crimea.[8] Russian forces justified the transport from Kherson as protection from the Ukrainian army.[9] This is not the first time the Kherson museum has been looted: the Nazis stole art during World War II, and the collections were never fully restored.[10]

Invading forces loot cultural property as a tactic: the Nazis looted as part of their attempt to “eliminate” Jewish culture and to “enrich” the Third Reich.[11] Experts approximate the Nazis looted 150,000 works in Western Europe and 500,000 works in Eastern Europe.[12] Today, there is still no uniform forum or course of action for restitution and repatriation.[13] Claimants generally rely on private litigation and face varying domestic laws and jurisdictional issues.[14] Additionally, proving title is difficult, documentation and witnesses are sparse, and the statute of limitations may bar claims.[15] Certain states attempted to remedy this through domestic legislation, but lack of uniformity and documentation remain an issue.[16]

While the theft of cultural property is not, and should not be, the highest priority for prosecution of Russian war crimes,[17] cultural property is central to the identity and history of a nation. This is particularly pertinent today, with Russia denying Ukraine’s right to exist. International law prohibits Russia’s theft of Ukraine’s cultural property, but treaty provisions on restitution and repatriation remain insufficient and implementation ineffective. This blog argues that the 1970 UNESCO Convention should be amended to include stronger obligations for repatriation and a forum for dispute resolution. Hopefully, the increased international attention to Ukraine will encourage the international community to examine this issue.

The Current Legal Framework

There are three main treaties on the theft of cultural property: the Hague Convention, UNESCO, and UNIDROIT. The items stolen in Ukraine meet the definition of cultural property under each treaty.[18]

The Hague Convention

The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflicts focuses on prevention and prohibition of theft of cultural property in response to World War II.[19] Parties “undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property.”[20] Ukraine and Russia both ratified the treaty.[21]

Under Article 12, transport of cultural objects only takes place at the “request of the concerned party” and urgent transport must follow strict procedures.[22] If stolen objects are imported into a State Party’s territory they must be taken into custody.[23] However, there is no specific venue for dispute resolution, and criminal sanctions are only possible through the “ordinary criminal jurisdiction” of the damaged party.[24]

The Second Protocol of 1999 attempted to strengthen the First Protocol.[25] Ukraine is a party, but Russia is not.[26] Under Article 15, intentional “theft, pillage or misappropriation of, or acts of vandalism directed against cultural property protected under the Convention” is a war crime. It also provides that States Party should adopt legislation making such theft a criminal offense.[27] Notably, however, the Hague Convention does not contain explicit repatriation obligations, or create a venue for dispute resolution.[28]

The UNESCO 1970 Convention

The UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property expands on the Hague Convention through provisions on remedies and covers theft outside of conflict.[29] Both Russia and Ukraine ratified the convention, along with 141 other States.[30] Article 2 calls for “helping to make the necessary reparations” and Article 7 requires State Parties, “at the request of the State Party of origin, to take appropriate steps to recover and return any such cultural property imported” and prevent museums from obtaining illegal art. [31]Article 5 obliges states to set up a national inventory of protected property and a national service to protect cultural heritage.[32] This Convention also lacks an official dispute resolution forum and criminal sanctions.[33]

1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects

The International Institute for the Unification of Private Law (UNIDROIT) expands on the UNESCO Convention by attempting to create uniform private law for individuals, adding statute of limitations recommendations, and provisions on compensation of bona fide purchasers.[34] The Convention has the strongest provisions on restitution as Article 5 grants authority to a “court or other competent authority of another Contracting State to order the return of a cultural object illegally exported.”[35] Article 8 allows parties to submit disputes to courts.[36] Unfortunately, UNIDROIT is not effectively implemented and only has 32 contracting parties.[37] Russia has signed but not ratified the treaty, and Ukraine is also not a party.[38]

The Gaps in the Law

As the conflict in Ukraine develops, uniform implementation of will be crucial to proper repatriation and restitution. There are three major gaps in the existing law on repatriation: the lack of a forum to resolve disputes, weak obligations to return stolen cultural property, and minimal adoption of the UNIDROIT Convention. As it stands, there is no explicit call for repatriation when a State Party loots art. State Parties must rely on their own courts, which may lack jurisdiction or authority to enforce judgments. Additionally, States Party may choose venues that are more likely to implement their favored outcome. The current framework does not circumvent the pitfalls of litigation for Nazi-looted art.[39] The strongest obligation for repatriation is found in UNIDROIT, which is the least adopted treaty and applies to private action. However, international law does not have effective implementation of cultural property theft against private parties and conflict of private law, since only 32 states are contracting parties and the treaty is not customary international law.

Filling the Gaps

As a result of the increased attention to the theft of cultural property, the international community may be motivated toamend the existing legal framework to prevent future implementation issues.[40] The 1970 UNESCO Convention should be amended instead of creating a Third Protocol to the Hague Convention, so improvements apply to theft outside of conflict.

Firstly, the 1970 UNESCO treaty should adopt an optional protocol to grant UNESCO jurisdiction for dispute resolution.[41] A neutral forum is essential for implementation when the outcome of conflict is uncertain and to minimize politicization. UNESCO considered proposals for conciliation and mediation for disputes but has not adopted them and the results would not be binding.[42] The Intergovernmental Committee for Promoting the Return of Cultural Property should have jurisdiction for disputes.[43] Members would be appointed from each region, be experts in the field, and serve scattered terms to limit politicization and bias.[44]

Secondly, the 1970 UNESCO treaty should include stronger language on repatriation inspired by the UNIDROIT convention. Article 2 should replace “helping to make the necessary reparations” with “enabling the return of stolen cultural objects from the possessor,” and allow the Intergovernmental Committee for Promoting the Return of Cultural Property to order return of property after dispute resolution.[45] This would create a positive obligation on States Parties, whereas the existing language only obliges “help,” which is a weak obligation and does not require return.

Thirdly, increased attention to the situation in Ukraine may encourage more signatories to the UNIDROIT convention to make the treaty effective. On top of that possibility, UNIDROIT should take this opportunity to include an optional protocol for arbitration at a commission dedicated to cultural property dispute to prevent choice of law and forum shopping issues.[46] These changes could be instrumental in preventing the litigation issues claimants face in Nazi looted art litigation.[47]

  1. Tessa Soloman, UNESCO Is Training European Nations in How to Save Ukrainian Art Looted by Russia, Art News (Jan. 19, 2023), https://www.artnews.com/art-news/news/unesco-is-training-authorities-how-to-save-trafficked-ukrainian-art-1234654213/; Jeffrey Gettleman & Oleksandra Mykolyshyn, As Russians Steal Ukraine’s Art, They Attack Its Identity, Too, N.Y. Times (Jan. 14, 2023), https://www.nytimes.com/2023/01/14/world/asia/ukraine-art-russia-steal.html. ↑

  2. Gettleman, supra note 1. ↑

  3. Anna Nemtsova, The Bitter Truth Behind Russia’s Looting of Ukrainian Art, The Atlantic (Jan. 21, 2023) https://www.theatlantic.com/international/archive/2023/01/russia-looting-ukraine-art-treasures-kherson/672790/; Gettleman, supra note 2; Human Rights Watch, Ukraine: Russians Pillage Kherson Cultural Institutions, https://www.hrw.org/news/2022/12/20/ukraine-russians-pillage-kherson-cultural-institutions (last visited Feb. 5, 2023); Soloman, supra note 1. ↑

  4. Soloman, supra note 1; Lovett, supra note 8; UNESCO, UNESCO Actions for Ukraine, https://www.unesco.org/en/ukraine-war/actions-timeline (last visited Feb. 5, 2023). ↑

  5. Nemtsova, supra note 3. ↑

  6. Ian Lovett, Russians Systematically Loot Art, Ancient Relics, From Ukraine’s Cultural Sites, W. S. J. (Dec. 4, 2022), https://www.wsj.com/articles/russians-systematically-loot-art-ancient-relics-from-ukraines-cultural-sites-11670159030; Nemtsova, supra note 3; Human Rights Watch, supra note 3. ↑

  7. Human Rights Watch, supra note 3. ↑

  8. Nemtsova, supra note 3; Human Rights Watch, supra note 3. ↑

  9. Human Rights Watch, supra note 3. ↑

  10. Nemtsova, supra note 3. ↑

  11. Owen C. Pell, The Potential for a Mediation/Arbitration Commission to Resolve Disputes Relating to Artworks Stolen or Looted During World War II, 10 DePaul-LCA J. Art & Ent. L. 27, 28 (1999);

    Jennifer A. Kreder, Reconciling Individual and Group Justice with the Need for Repose in Nazi-Looted Art Disputes: Creation of an International Tribunal, 73 Brooklyn L. Rev. 155, 160. ↑

  12. Pell, supra note 11, at 33. ↑

  13. Jennifer A. Kreder, The Choice between Civil and Criminal Remedies in Stolen Art Litigation, 38 Vand. J. Transnat’l L. 1199, 1203 (2005). ↑

  14. Pell, supra note 11, at 45. ↑

  15. Kreder, supra note 13, at 1203. ↑

  16. See e.g., Cross-border Restitution Claims of Art Looted in Armed Conflicts and Wars and Alternatives to Court Litigations, Eur. Parl. Doc. (PE 556.947) 20 (2016) (listing The Washington Principles and the Dutch Cultural Heritage Legislation). ↑

  17. There are allegations of thousands of war crimes with extensive documentation. Russian war crimes include the crime of aggression, the unlawful transfer and deportation of protected persons, indiscriminate bombings, direct attacks on civilians (including children), attacks on schools, strikes on medical facilities, sexual assault, summary execution, and looting of civilian property. See e.g., U.S. Dep’t of State, Evidence of Russia’s War Crimes and Other Atrocities in Ukraine: Recent Reporting on Child Relocation (Feb. 14, 2023), https://www.state.gov/evidence-of-russias-war-crimes-and-other-atrocities-in-ukraine-recent-reporting-on-child-relocations/; Michael Biesecker, Evidence of Russian War Crimes Mounts as Invasion of Ukraine Drags On, PBS (Dec. 3, 2022), https://www.pbs.org/newshour/world/evidence-of-russian-war-crimes-mounts-as-invasion-of-ukraine-drags-on; Human Rights Watch, Ukraine: Apparent War Crimes in Russian Controlled Areas (Apr. 3, 2023) https://www.hrw.org/news/2022/04/03/ukraine-apparent-war-crimes-russia-controlled-areas. ↑

  18. United Nations Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property art. 1, . 14, 1970, 823 U.N.T.S. 231 [hereinafter UNESCO Convention]; Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention 1954 art. 1, May 14, 1954, 249 U.N.T.S. 215 [hereinafter Hague Convention]. ↑

  19. Eur. Parl. Doc., supra note 16, at 10. ↑

  20. UNESCO Convention, supra note 18, at Art. 4. ↑

  21. To see a list of States Party to the Protocol, see Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict, UNESCO, https://en.unesco.org/node/297945/#edit-sort-by (last visited Feb. 5, 2023). ↑

  22. Hague Convention, supra note 18, at art. 12,13. ↑

  23. Id., at art. 1. ↑

  24. Id., at art. 19. ↑

  25. Eur. Parl. Doc., supra note 16, at 10. ↑

  26. To see a list of States Party to the Protocol, see Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, UNESCO, https://en.unesco.org/about-us/legal-affairs/second-protocol-hague-convention-1954-protection-cultural-property-event (last visited Feb. 5, 2023). ↑

  27. Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict art. 15, Mar. 9, 2004, 3511 U.N.T.S. 2253 [hereinafter Hague Second Protocol]. Parties interpret the Convention to not be self-executing. See, e.g., Eur. Parl Doc., supra note 16, at 17. ↑

  28. Hague Convention, supra note 18, at art. 1; Hague Second Protocol, supra note 28, at art. 9. ↑

  29. Gao Sheng, International Protection of Cultural Property: Some Preliminary Issues and the Role of International Conventions, 12 Sing. Y.B. of Int’l L. 57, 63 (2008). ↑

  30. To see a list of States Party to the Protocol, see State Parties to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, UNESCO, https://www.unesco.org/en/legal-affairs/convention-means-prohibiting-and-preventing-illicit-import-export-and-transfer-ownership-cultural (last visited Feb. 5, 2023). ↑

  31. UNESCO Convention, supra note 18 at art. 2. ↑

  32. Id., at art. 5. ↑

  33. Amber J. Slattery, Comment, To Catch an Art Thief: Using International and Domestic Laws to Paint Fraudulent Art Dealers Into a Corner, 19 Vill. Sports & Ent. L.J. 827, 861 (2012). ↑

  34. Id., at 862; Eur. Parl Doc., supra note 16, at 24; ↑

  35. United Nations International Institute for the Unification of Private Law [“UNIDROIT”] Convention on Stolen or Illegally Exported Cultural Objects, June 24, 1995, 2421 U.N.T.S. 457 [hereinafter UNIDROIT Convention]. ↑

  36. Id., at art. 8. ↑

  37. Slattery, supra note 33, at 862. ↑

  38. To see a list of States Party to the Protocol, see UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, UNIDROIT, https://www.unidroit.org/instruments/cultural-property/1995-convention/status/ (last visited Feb. 5. 2023). ↑

  39. See, Pell, supra note 11, at 58 (Restitution litigation suffers from lack of jurisdiction and statute of limitations). ↑

  40. See generally, UNESCO General Conference, Strategy to Facilitate the Restitution of Stolen or Illicitly exported Cultural Property, U.N. Doc. 33 C/46 (Aug. 25, 2005), https://unesdoc.unesco.org/ark:/48223/pf0000140517.page=3; Stolen Ukrainian Art Finding Safe Havens From War, Art Critique (Jan. 22, 2023), https://www.art-critique.com/en/2023/01/stolen-ukrainian-art-finding-safe-havens-from-war/. ↑

  41. See, What is an Optional Protocol?, UN Women, https://www.un.org/womenwatch/daw/cedaw/protocol/whatis.htm (last visited Feb. 19, 2023). ↑

  42. UNESCO General Conference, Strategy to Facilitate the Restitution of Stolen or Illicitly exported Cultural Property, U.N. Doc. 33 C/46 (Aug. 25, 2005), https://unesdoc.unesco.org/ark:/48223/pf0000140517.page=3 ↑

  43. See, Return & Restitution Intergovernmental Committee, UNESCO, https://en.unesco.org/fighttrafficking/icprcp#:~:text=The%20UNESCO%20Intergovernmental%20Committee%20for,as%20a%20permanent%20intergovernmental%20body ↑

  44. Id. (preexisting permanent intergovernmental body that has the responsibility of facilitating bilateral negotiations for return of objects. The 22 Member States are elected for four-year periods by the General Conference of UNESCO and half of the members are renewed every two years.). ↑

  45. UNESCO Convention, supra note 18;UNIDROIT Convention, supra note 35. ↑

  46. See generally, Sean Murphy, International Dispute Resolution, Principles of International Law 152, West Academic Publishing; 2nd edition (May 31, 2012). ↑

  47. See, Pell, supra note 13, at 45. ↑

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