1. This conference is organized within the frame of a convention between the Centre National de la Recherche Scientifique (C.N.R.S.), the University degli Studi of Milan and other major universities and research and conservation European and non-European institutes. More precisely the convention signed in Paris on the 1st of February 2006 between the C.N.R.S., the University of Paris-Sud 11, the University of Poitiers, the Freie Universität of Berlin, the University Rey Juan Carlos of Madrid, the University of Burgos, the University Hassan II of Casablanca, the Musée d’Art Africain of Dakar, the University of Geneva, the University of Tunis El Manar and the University degli Studi of Milan has created an International research group on cultural property law (GDRI - Droit du patrimoine culturel et droit de l’art), which is carrying out a Dictionnaire comparé du droit du patrimoine culturel.
In such a context the organization of a conference on the subject matter has been considered as particularly appropriate and in touch with the vocation of the city of Milan, its tradition as a major cultural and commercial centre and its actual position in the European art market.
2. The proliferation of norms, both domestic and international, concerning the protection of cultural property is quite recent and implies a particular consideration by the experts in this field. The conference is aimed at drawing the attention on the function of rules that – albeit often lacking the coercive nature of legal norms – are capable of playing an increasing role. Reference is made to those ethical and/or deontological norms which play a role that today cannot be neglected concerning the rules of conduct in the field of the protection of cultural property as well as in the art market and in the international trade in cultural objects. A specific attention is therefore dedicated to codes of ethics and to deontological rules frequently set up by international organizations, institutions, public and private entities, international and national federations, in order to offer a complete picture of the interests at stake.
The selected subjects mainly concern the relationship between codes of ethics, museums and culture professionals, that between codes of ethics and institutions’ policies and that between codes of ethics and art market. The above subjects are analysed under different points of view, such as the management of museum collections and of archives, the codes of ethics, art and cultural professionals, the acquisition policies of cultural property, the loans and temporary exhibitions, the restitution and return of cultural property, the codes of ethics, art market and international trade.
3. In light of the contents of the above codes of ethics a specific attention must be paid to the settlement of disputes concerning cultural property. Under this point of view the choice of arbitration as a particularly suitable tool for the settlement of such disputes shall be highlighted. As far as the acquisitions by public and private museums and the consideration of the illicit provenance of objects are concerned, this choice may turn out to be particularly farsighted, in light of the greater flexibility of the arbitration body if compared to the judicial courts. This should certainly entail a particular awareness of all those factual elements that show a specific connection with the case and that could give a significant contribution in order to reach the decision of the case.
The favour for such a kind of settlement has been expressed by prestigious international institutions, such as the International Law Association, as well as by international organizations, such as the Permanent Court of Arbitration, that has suggested to turn to arbitration and/or to other alternative dispute settlement tools in this field, even by way of promoting seminars dedicated to this subject.
Actually the resort to the above tools does not occur frequently in cases concerning cultural property, due to a number of reasons among which the tension generally existing between the parties, or the frequent absence of a renvoi to ADS in the main applicable international conventions.
As far as the disputes between States are concerned it is however to be noted that the Permanent Court of Arbitration has quite recently decided a dispute in the field of cultural property between Eritrea and Ethiopia, concerning the destruction of the Stone of Matara by the Ethiopian troops during the occupation period of May, 2000, applying the relevant international law rules.
4. As is the case in international commercial arbitrations with reference to the compliance with the so called “objective rules of international trade” (lex mercatoria), the arbitration body shall apply those directives, guidelines, codes of ethics etc. that, even though not mandatory, are issued by international organizations, bodies, institutions or international professional associations and, as such, are known not only to those bound by them but, more generally, to all professionals of the relevant area. The sources of production are therefore heterogeneous: UNESCO, ICOM, CINOA (Confédération internationale des négociants en œuvres d’art), AAM (American Associaiton of Museums), AAMD (Association of Art Museum Directors), EAA (European Association of Archaeologists), ICA (International Council on Archives).
Besides the Guidelines of the American Association of Museums (AAM) – that has set up three important codes such as the Code of Ethics for Museums, 2000, the Guidelines on Exhibiting Borrowed Objects, 2000 and the Guidelines concerning the Unlawful Appropriation of Objects during the Nazi Era, 1999, amended in 2001 – as well as the Association of Art Museum Directors (AAMD) which has adopted the Guidelines on Loans of Antiquities and Ancient Art in 2006, one should mention the activity of the International Council of Museums (ICOM), with specific reference to the Code of Professional Ethics amended on October 8, 2004, concerning the principles that should inspire all those operating in this field, particularly in order to avoid acquisitions of items of illicit or doubtful provenance.
5. It is to be added that the transparency in the transactions concerning works of art and cultural property also depends on the compliance with the mentioned rules.
To this regard one can talk about a real “direct effect”, i.e. the relevant and usual effect of the mentioned rules consisting in the negative consequences borne by the member in case of (serious) breach of these rules, in all circumstances in which the code or, more often, the statute of the association/institute concerned provide for sanctions that can lead to the loss of membership of the category involved.
Practically, this “direct effect” should exist, at least in cases where the codes of conduct comprising the mentioned ethical rules must be abided by the affiliated members and governing bodies and applied by the same in a punctual manner. To the above one must add the “indirect effect” that should take place each time that said rules of conduct are referred to, or that the abidance by the same rules is taken into account as a factual element in order to evaluate the conduct of the subjects concerned.
It must be added that the mentioned ethical rules constitute, by definition, the expression of the interests that they represent and therefore are not neutral, nor necessarily conceived to safeguard a general interest. It is therefore possible that the professional milieux involved, whose relevant associations have adopted ethical codes for its associates, end up expressing very different opinions fully coherent, besides, with the interests they represent. This may well happen in case of disputes settled by means of a judicial authority, especially in judicial systems that allow for a third party that has a relevant, albeit abstract, interest to safeguard, to intervene in the case either to give the Court an opinion, or to endorse the position of one of the parties.
In the famous United States v. Schultz case (2003) concerning a law-suit between the Federal State and an important Manhattan antique dealer, concerning the appraisal of the latter’s conduct on occasion of an import in the United States of objects of archaeological interest and the application of the special federal law (National Stolen Property), the Court of Appeal for the Second Circuit was lodged with three amicus curiae briefs, with one brief by certain private associations endorsing the defendant’s position (National Association of Dealers in Ancient Art, International Association of Professional Numismatists, Art Dealers Association of America, Antique Tribal Art Dealers Association, etc.), with one brief by other associations, endorsing the State’s position, (Archaeological Institute of America, Society for American Archaeology, Society for Historical Archaeology, United States Committee for the International Council on Monuments and Sites) representing opposite interests. At this pace we could easily envisage a conflict between codes of conduct and ask ourselves to determine the criteria aimed at choosing, between the conflicting interests, the one more worthy of being safeguarded. This aspect has also to be considered in order to determine more precisely the function of these rules of conduct as regulatory tools of the art market and of the protection of cultural property.
Manlio Frigo
|
