Rule 41. The occupying power must prevent the illicit export of cultural property from occupied territory and must return illicitly exported property to the competent authorities of the occupied territory.
State practice establishes this rule as a norm of customary international law applicable in international armed conflicts.
The obligation to prevent the exportation of cultural property from occupied territory is set forth in paragraph 1 of the First Protocol to the Hague Convention for the Protection of Cultural Property, to which 88 States are party, including States specially affected by occupation.
This rule is also contained in Article 2(2) of the Convention on the Illicit Trade in Cultural Property, under which States undertake to oppose the illicit import, export and transfer of ownership of cultural property “with the means at their disposal, and particularly by removing their causes, putting a stop to current practices, and by helping to make the necessary reparations”.
Article 11 of the Convention states that “the export and transfer of ownership of cultural property under compulsion arising directly or indirectly from the occupation of a country by a foreign power shall be regarded as illicit”.
The Convention has been ratified by 104 States, 37 of which are not party to the First Protocol to the Hague Convention for the Protection of Cultural Property. Since 88 States are party to the latter, this means that a total of 125 States have adhered to a treaty obligation to respect this rule. In addition, Article 9(1) of the Second Protocol to the Hague Convention requires that an occupying power prohibit and prevent “any illicit export, other removal or transfer of ownership of cultural property”, while Article 21 requires States to suppress these violations.
The inclusion of these rules in the Second Protocol during the negotiations leading to its adoption was uncontroversial. In the London Declaration in 1943, the Allied governments warned that they would regard any transfer of property rights, including of cultural property, as illegal.
Other practice supporting this rule includes military manuals, national legislation and official statements.
While this practice concerns States party to the First Protocol to the Hague Convention for the Protection of Cultural Property, it can nevertheless be concluded that the prohibition on exporting cultural property is customary because, in addition to support for this rule found in the practice mentioned above, this obligation is inherent in the obligation to respect cultural property, and particularly in the prohibition on seizing cultural property (see Rule 40). If cultural property may not be seized, then a fortiori
it may not be exported.
No official contrary practice was found.
Several treaties concluded after the Second World War dealt with the restoration of cultural property exported during occupation. Under the Treaty of Peace between the Allied and Associated Powers and Italy concluded in 1947, Italy was obliged to return cultural property to Yugoslavia and Ethiopia.
Under the Convention on the Settlement of Matters Arising out of the War and the Occupation adopted in 1952, Germany was to set up an agency to search for, recover and restitute cultural property taken from occupied territory during the Second World War.
The obligation to return cultural property which has been illegally exported from occupied territory is set forth in Paragraph 3 of the First Protocol to the Hague Convention for the Protection of Cultural Property, which has been ratified by 88 States.
Paragraph 3 of the First Protocol to the Hague Convention is formulated more generally as applicable to all parties to the Protocol and not only to the occupying power.
However, no practice was found on the obligation of third parties to return cultural property illicitly exported and present on their territory. Hence this rule is formulated more narrowly as applicable, at least, to the occupying power itself, which having failed in its duty to prevent the exportation must remedy this failure by returning the property. According to paragraph 4 of the Protocol, possible holders of the property in good faith must be compensated.
The obligation to return exported cultural property is also recognized in many official statements, including by Germany in relation to its occupation during the Second World War and by Iraq in relation to its occupation of Kuwait.
In the context of the Gulf War, the UN Security Council urged Iraq on several occasions to return to Kuwait all property seized.
In 2000, the UN Secretary-General noted that a substantial quantity of property had been returned since the end of the Gulf War but that many items remained to be returned. He stressed that “priority should be given to the return by Iraq of the Kuwaiti archives … and museum items”.
While this practice concerns States party to the First Protocol to the Hague Convention for the Protection of Cultural Property, it can nevertheless be concluded that the obligation to return illicitly exported cultural property is customary because, in addition to support for this rule found in the practice mentioned above, it is also inherent in the obligation to respect cultural property, and particularly in the prohibition on seizing and pillaging cultural property (see Rule 40). If cultural property may not be seized or pillaged, then a fortiori
it may not be held back in case it has been illegally exported. Restitution of illegally exported property would also constitute an appropriate form of reparation (see Rule 150).
No official contrary practice was found.
Paragraph 3 of the First Protocol to the Hague Convention for the Protection of Cultural Property specifies that cultural property shall never be retained as war reparations.
In 1997, however, the Russian Federation’s Law on Removed Cultural Property declared cultural property brought into the USSR by way of exercise of its right to "compensatory restitution" pursuant to orders of the Soviet authorities to be federal property of the Russian Federation.
In 1999, the Russian Federation’s Constitutional Court upheld the constitutionality of this law insofar as it dealt with “the rights of Russia to cultural property imported into Russia from former enemy states by way of compensatory restitution”. In the Court’s opinion:
The obligation of former enemy states to compensate their victims in the form of common restitution and compensatory restitution is based on the well-established principle of international law recognised well before World War II, concerning international legal responsibility of an aggressor state.
Germany has on several occasions objected to this decision and stated that “thefts and destruction of cultural property by the Nazi regime as well as the removal of cultural property by the Soviet Union during and after the Second World War were breaches of international law”.
It should be stressed, however, that the Russian law applies to acts which occurred before the First Protocol to the Hague Convention for the Protection of Cultural Property entered into force.