Cultural Property of the State and its Immunity

Abstract

In recent times, technology has had the effect of making the world smaller in many respects. Nowadays not only it is possible to travel distances in shorter time, but we also have the possibility of accessing ‘satellite’ museums of the Hermitage Museum of Saint Petersburg in, for example, Malaga or Amsterdam, or enjoying collections lent by museums to others that are located in the other side of the world than where they are usually exhibited. This lending and the application of new technologies for the diffusion of art works have led to reclamations of pieces by those who consider themselves legitimate owners. When the assignor or the owner is a State museum we are faced with the insurmountable wall of state immunity of the lending State in the territory of the forum state in two aspects: jurisdiction and execution. The immunity of the lent art works is merely a practical application of these known immunities whose scope depends on the internal legislation of the State in which the judicial proceedings take place or in which a claim for execution of a judgement is made. The states, to avoid it, usually conclude bilateral agreements that allow them to guarantee the return of lent collections. This practice demonstrates the difficult equilibrium between State immunity, the individual right to property and the right to effective judicial remedies, or between the collective interest —cultural cooperation— and the individual —the recuperation of the good—.

Keywords

• Estado, inmunidad de jurisdicción, inmunidad de ejecución, tribunales nacionales e internacionales, préstamos