Gdańskie Studia Prawnicze Wydawnictwo Uniwersytetu Gdańskiego en-US Gdańskie Studia Prawnicze 1734-5669 Cultural heritage law as a complex branch of law <div class="page" title="Page 16"> <div class="layoutArea"> <div class="column"> <p>The aim of this paper is to discuss cultural heritage law as a complex branch of law primarily by demonstrating the basic criteria of its autonomy. In particular, the criterion of the subject of regulation, and the criterion of the possession of its own principles of law and its own theory and sources of law will be presented. Research was undertaken at several levels, corresponding to the sections of this article, mainly using the apparatus of administrative, criminal, civil, and administrative law. The methodology adopted in terms of the theory and philosophy of law, in turn, made it possible to analyze the research problem. It should be noted that cultural heritage law is subject to divisions and fragmentation because of its connection with legal studies, traditional branches of law, and the field of law and the discipline within which the research was conducted.</p> <p>Because of the interdisciplinary nature of cultural heritage, both the internal and external integration of legal studies and law is only one of the elements that contribute to this subject. Others include art history, architecture, archaeology, and conservation, etc. Because of this interdisciplinary aspect, cultural heritage law contains norms not only relating to the protection of monuments and administrative law, but also to constitutional law, criminal law, civil law, and international law, etc. The principles of cultural heritage law have developed, and this applies to its own theory, its subject of protection, and its own legal sources. If we take this into account, we can see that cultural heritage law as a complex branch of law has developed most criteria that make it possible to consider it autonomous.</p> </div> </div> </div> Kamil Zeidler Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 11 27 10.26881/gsp.2021.2.01 A methodological consideration on international trafficking of cultural property: An approach from Bayesian statistics <div class="page" title="Page 18"> <div class="layoutArea"> <div class="column"> <p>Focusing on issues of illicit trafficking in movable cultural property, this article proposes the introduction of a probabilistic tool called Bayesian Inference in the area of cultural heritage law. With a tentative probabilistic model, it is demonstrated how Bayesian Inference can be utilized for quantifying the actual impact of evidence on the process whereby a customs official detects illicit trade in stolen cultural property.</p> </div> </div> </div> Ren Yatsunami Yatsunami Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 28 46 10.26881/gsp.2021.2.02 Proprietary fragmentation and public-private management of UNESCO sites owned by the Italian state <div class="page" title="Page 19"> <div class="layoutArea"> <div class="column"> <p>The paper discusses the relationship between UNESCO sites belonging to the Italian State and profiles of profitability and sustainability. If it is true that the general characteristics of UNESCO’s Italian (and not only Italian) sites is a heterogeneity of legal ownership, at the same time in the UNESCO sites belonging to the Italian State (twenty-five out of fifty-five: 45,55%) to the plurality of legal regimes is added a heterogeneity of management models. In this case, plurality of properties affects success, since it also affects the management of the site.</p> <div class="page" title="Page 20"> <div class="layoutArea"> <div class="column"> <p>The negative effects of the fragmentation of State-owned UNESCO sites can be summarized as: 1) differences in staff recruitment; 2) differences in management models; 3) differences in the degree of available enjoyment; 4) differences in economic profitability; and 5) differences in accounting framework. If diversity is barely comprehensible when sites belong to different institutions, it is even less comprehensible when they are state-owned.&nbsp;A consequence of the complete heterogeneity of legal and organizational frameworks is a heterogeneity of economic results. The gap is huge and unacceptable: Tarquinia and the Cerveteri Etruscan tombs – €38,964.84 (2018) and €57,127.00 (2019); the Coliseum archaeological park – €46,347,249.57 (2018) and €48,465,096.71 (2019). Not to mention that to such incomes, we should add the incomes from the Roman National Museum, the Ancient Art Gallery, and the State Roman museums appertaining to the Direzione Regionale musei Lazio, and sites of the Archaeological Superintendence of Rome.&nbsp;If it is true that the award of UNESCO status to a site is independent, as it should be, of economic potential, it is also true that the increase of a site’s economic potential is instrumental in achieving the purposes of the UNESCO Convention: protection and valorisation. The increase of a site’s profitability is, therefore, a potential which is inherent to the UNESCO award and, at the same time, a requirement; it is, as it were, a means towards the ends of the UNESCO Convention. From this derives the obligation of autonomous financial reporting of UNESCO sites, something that is, at the moment, lacking in many State UNESCO sites, which currently do not have their own accounting and financial autonomy.&nbsp;In conclusion, the theme of the fragmentation of ownership of the fifty-five Italian UNESCO sites and its effects on management and financial profitability makes it possible to investigate the actual consideration that the national legal system gives to UNESCO sites, i.e. an importance that, beyond official declarations, UNESCO sites have in the internal legal system.</p> </div> </div> </div> </div> </div> </div> Antonio Leo Tarasco Copyright (c) 2021 2021-07-06 2021-07-06 2(50)/2021 47 67 10.26881/gsp.2021.2.03 Claiming restitution of underwater cultural heritage: The Getty Bronze case <div class="page" title="Page 15"> <div class="layoutArea"> <div class="column"> <p>This article focuses on the legal questions raised by the convoluted story of the statue known as the Getty Bronze, an ancient sculpture dating back to the 4th century BC found in the Adriatic Sea off the coast of Italy over fifty years ago and currently on exhibit at the Getty Museum in California. The dispute between the Museum and the Italian State has been going on for many years. With a recent decision, the Italian Supreme Court confirmed the confiscation order with respect to the statue “wherever it is located”. But can such an order be enforced abroad and the antiquity returned to the claimant state? Taking its cue from this decision, the article discusses the law applicable to the regime of illegally exported archaeological properties demonstrating the inadequacy of the lex rei sitae rule to regulate disputes relating to the return of antiquities that are part of a state’s cultural heritage. It also analyses the issue of enforcement of the confiscation order abroad, suggesting a possible alternative solution to solve this long drawn out judicial affair.</p> </div> </div> </div> Alessandra Lanciotti Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 68 82 10.26881/gsp.2021.2.04 International and transnational conditions of penalization of illegal export of cultural property from the territory of a legitimate state <p>This article discusses the issue of international and supranational conditions of criminalization of illegal export of a cultural object from the territory of an authorized state. The text is divided into four parts. The first is introductory in nature, indicating the acts of international law that have been developed in order to prohibit the illegal export of cultural goods abroad and to combat the functioning of the illegal art market. In particular, on the one hand, it is pointed out that it was necessary to introduce mechanisms into internal control systems to prevent illegal export of cultural goods. On the other hand, the importance of national protection measures adopted in order to counteract the acquisition of cultural goods illegally removed from the territory of another state is emphasized. Attention is paid to the crime of theft, falsification of documents, fencing, and illegal trade in cultural goods, especially their import, export, and marketing, related to the crime of illegal export of cultural goods. The instruments are indicated that have been adopted within the framework of cooperation between EU Member States in order to counteract the illegal export of cultural goods.&nbsp;</p> <p>Detailed comments on counteracting the illegal export of cultural goods from the territory of the authorized state between the EU Member States are discussed in the second part of the article under the title: A model approach to penalizing the act of illegal export of national cultural goods from the territory of a Member State on the basis of European Union law.&nbsp;</p> <p>The third part of the article covers the analysis of the problem of illegal export of a cultural object from the territory of a Member State from the perspective of national law. The discussion focuses primarily on the conditions for determining the individual legal liability of the perpetrator of the illegal export of a cultural object and the type and amount of the penalty imposed as a result of such behavior. The article ends with a fourth part, in which final conclusions are formulated. The key factor is the statement that the contemporary rational legislator, in order to work out optimal legal protection, cannot be limited only to taking into account the patterns functioning within the national legal order. In this context, the significance of the unification function of law increases. This allows the introduction of uniform standards of protection, thanks to which the protection of cultural goods against illegal export beyond the borders of the authorized state is strengthened on an international and supranational scale.</p> Anna Gerecka-Żołyńska Copyright (c) 2021 2021-07-06 2021-07-06 2(50)/2021 83 98 10.26881/gsp.2021.2.05 Restrictions on the export of library materials from Poland <div class="page" title="Page 10"> <div class="layoutArea"> <div class="column"> <p>Library materials constitute a major element of Poland’s cultural heritage. Documentary heritage gathered in libraries makes libraries memory institutions entrusted with guarding resources of special value. This article is intended to evaluate the regulations governing permanent export that are applicable to library materials, considering the definition of library materials in the Act of 27 June 1997 on libraries (consolidated text: Journal of Laws of 2019, item 1479). Statistics clearly show that permits for the permanent export of library materials are exceedingly rare. This article discuss the effectiveness of the adopted solutions concerning export regulations related to library materials.</p> </div> </div> </div> Katarzyna Zalasińska Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 99 109 10.26881/gsp.2021.2.06 A survey of the 1970 UNESCO and 1995 UNIDROIT Conventions and their effects on Italian and European private law <div class="page" title="Page 15"> <div class="layoutArea"> <div class="column"> <p>This article analyses the influence on Italian and European private law of the UNESCO and UNIDROIT Conventions and European directives on the return of stolen and illicitly exported cultural goods. In effect, international rules have influenced the application of rules on the bona fide purchase of movable property, amending the provisions in force in most European countries and contributing to the constitution of a particular statute for cultural property.</p> </div> </div> </div> Geo Magri Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 110 124 10.26881/gsp.2021.2.07 Ratification of the 1995 UNIDROIT Convention in Poland: Pipe dream or realistic prospect? <div class="page" title="Page 8"> <div class="layoutArea"> <div class="column"> <p>The 1995 UNIDROIT Convention on Stolen or Illicitly Exported Cultural Objects complements the provisions included in the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Although the 1995 UNIDROIT Convention was adopted twenty-five years ago, Poland has not ratified it thus far. Hence, the aim of this article is to answer the question as to whether a ratification of the 1995 UNIDROIT Convention in Poland is a pipe dream or a realistic prospect. In the light of the foregoing, this article outlines the significance of the 1995 UNIDROIT Convention for cultural heritage law and presents its scope of application. Finally, it draws conclusions about the perspectives for the ratification of the 1995 UNIDROIT Convention in Poland.</p> </div> </div> </div> Magdalena Łągiewska Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 125 133 10.26881/gsp.2021.2.08 Mediation in cultural heritage disputes – pro et contra <div class="page" title="Page 13"> <div class="layoutArea"> <div class="column"> <p>It is common knowledge that mediation is available for various types of disputes ranging from commercial to family matters, avoiding the formalities, delays, and cost of court proceedings. Suitable for complicated yet delicate conflicts, this dispute resolution mechanism has become increasingly attractive for cultural heritage disputes. With parties aiming for compromise that may preserve confidentiality, the distinct features of the claims involving cultural heritage may impair as well as permit the traditional benefits of mediation. This paper aims to examine the relationship between cultural heritage and mediation while paying attention to its prospects under the auspices of the newly adopted the Singapore Convention. The author recommends several possible improvements relating to the mediation clause as a prerequisite to the proceedings, as well as the enforcement of the parties’ agreement as their outcome.</p> </div> </div> </div> Milica Arsic Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 134 147 10.26881/gsp.2021.2.09 From the Codex Theodosianus to the Nicosia Convention: The protection of cultural heritage as a means of secularisation <div class="page" title="Page 25"> <div class="layoutArea"> <div class="column"> <p>This article tries to present the establishing process of cultural heritage in a broader perspective, in which national legal regulations are only indicators of some general tendencies. It focuses particularly on the transformation of religious sites and objects into legally protected cultural heritage. The main thesis of this article is that the process of “heritagisation” of religion-related artifacts can be considered a political means of secularisation. Therefore, this discussion forms part of heritological research. Among others, this article aims to answer two main questions. What happens when religious sites, objects, and practices become heritage? Is it possible to extract a functional path in legal regulations giving an account of the protection of religious artifacts as cultural heritage in European history that changed their social perception? Is the “heritagisation” of religious objects equal to their conscious secular “patrimonialisation”, or is secularisation just a side-effect of their being protected by legal regulations?</p> </div> </div> </div> Mateusz Bieczyński Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 148 172 10.26881/gsp.2021.2.10 Designating cultural properties in the United States of America <div class="page" title="Page 17"> <div class="layoutArea"> <div class="column"> <p>The designation of cultural properties in the United States of America differs among the various levels of government – national, state, and local – because of the federal legal system. While the approach of the National Historic Preservation Act serves as a framework, state and local laws enable a varied and flexible approach based on local priorities while remaining compatible with the federal system.</p> </div> </div> </div> James Reap Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 173 190 10.26881/gsp.2021.2.11 Federal variety versus harmonisation: Recent monument legislation in Germany <div class="page" title="Page 14"> <div class="layoutArea"> <div class="column"> <p>Due to the division of powers between the Federation and the German states anchored in the Basic Law, German monument legislation is currently still fragmented. As the concept of a monument, administrative procedures, the status of UNESCO World Heritage sites, and possible sanctions in the event of offences against protected property are governed differently in sixteen monument protection laws, the question arises how to harmonise administrative practice.</p> </div> </div> </div> Dimitrij Davydov Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 191 205 10.26881/gsp.2021.2.12 The annulment of the export license for artworks in Italian law: The guarantee of legal certainty in relation to recent administrative and legal measures <div class="page" title="Page 9"> <div class="layoutArea"> <div class="column"> <p>This article originates from recent measures taken by the Italian Ministry of Culture which have ordered the annulment of some free-circulation certificates for administrative self-defense, pursuant to art. 21 nonies L. 241/1990. Such ex post control on the release of free-circulation certificates has alarmed national and international professional operators, and has created a situation of objective uncertainty about the possibility of exporting art objects purchased in Italy. This article, therefore, aims to analyze the legal substratum within which the Ministry’s control and verification action moves, to determine, wherever possible, the limits of the lawfulness of such behavior.</p> </div> </div> </div> Emanuel Spina Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 206 214 10.26881/gsp.2021.2.13 The application of the Recommendation on the Historic Urban Landscape in terms of the limits of acceptable change <div class="page" title="Page 10"> <div class="layoutArea"> <div class="column"> <p>twenty-first century from a legal point of view. Despite the adoption of the recommendation and a few official reports on the implementation of it, there are still only a few countries that fully understand the crucial idea of the concept. The main purpose of this study is to illuminate the problematic points of the legal implementation of the Recommendation at the current stage, especially in terms of limits of changes that are equally acceptable at local and international levels. Standards remain unclear within the framework of existing international regulations concerning the protection of historic urban landscapes, and differences remain in particular terms that play significant roles in defining the scope of the influence of the Recommendation. Examining the text of the Recommendation and previous international tools related to the topic, reviewing the experiences of several countries that have already successfully started to implement the rules of the Recommendation based on official reports from UNESCO, and the study of current obstacles will help us to see clearly how the international community might start to move to achieve the universal goal of protecting historic urban landscapes.</p> </div> </div> </div> Dinara Garaeva Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 215 224 10.26881/gsp.2021.2.14 Cultural heritage law as one of three dimensions of the aesthetics of law <div class="page" title="Page 14"> <div class="layoutArea"> <div class="column"> <p>The aesthetics of law covers the relations that exist between what is broadly understood as law and what is broadly understood as art. The latter is the source of aesthetic values and corresponding aesthetic experiences. Kamil Zeidler divides the aesthetics of law into three dimensions: external, internal, and what he calls “law as a tool of aesthetization”. The third dimension includes norms that affect the aesthetization of everyday life. The aim of this article is to present how cultural heritage law and its principles and standards contained in Polish legal acts can be perceived as a “tool of aestheticization”.</p> </div> </div> </div> Aleksandra Guss Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 225 238 10.26881/gsp.2021.2.15 A crime against cultural heritage in the aspect of the intangible value of a monument <div class="page" title="Page 6"> <div class="layoutArea"> <div class="column"> <p>It is worthwhile to look at the present judgement in the aspect of the protection of the intangible value of monuments. The buildings destroyed by Ahmad al Mahdi represented intangible values decipherable and comprehensible to the people of Timbuktu and Mali, and to the international community alike. Their destruction resulted in the obliteration of not only monuments of tangible nature, but also of intangible monuments which are expressed in religion and rituals; in consequence, it was a crime that undermined the expression of identity of a specific social group. Therefore, the intangible value of monuments, underlined in the case being analysed, is not only expressed through its artistic or historic value, but it also consists of the spiritual heritage connected to the destroyed religious buildings.</p> </div> </div> </div> Katarzyna Stanik-Filipowska Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 241 246 10.26881/gsp.2021.2.16 Restoration of protected buildings can never return them to their original brilliance and originality <div class="page" title="Page 6"> <div class="layoutArea"> <div class="column"> <p>The destruction of cultural heritage continues to outrage the international community, and although the tools of international law are ineffective in stopping such attacks, rulings such as the one discussed in this commentary might provide a chance to prevent further destruction and discourage prospective perpetrators. Reparations orders are supposed to demonstrate that even though the perpetrators have not been punished at the national level, this does not mean that they will not by punished for crimes on the international level. Beyond any doubt, cultural heritage defines communities regardless of location and helps communities identify with their past and traditions that have been passed down in them for generations. In the case discussed below, for the community of Timbuktu the demolition of cultural heritage did not mean only the damage to protected buildings, it also damaged their identity.</p> </div> </div> </div> Olivia Koperska Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 247 254 10.26881/gsp.2021.2.17 Trade mark protection after the expiration of copyright: The municipality of Oslo’s controversial way to protect the work of Gustav Vigeland <div class="page" title="Page 9"> <div class="layoutArea"> <div class="column"> <p>This commentary analyzes the judgment of the European Free Trade Association (EFTA) Court of 6 April 2017 in Case E-5/16 concerning trade mark protection of works pertaining to the public domain. The judgment relates to the intention of the municipality of Oslo to register multiple works of art by Gustav Vigeland, one of the most eminent of Norwegian sculptors, as trade marks. The Court thoroughly analyzed the grounds for refusing the registration and focused on the contradiction with public policy or accepted principles of morality and the issue of cultural heritage.</p> </div> </div> </div> Ewelina Szatkowska Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 254 262 10.26881/gsp.2021.2.18 The rules for imposing a financial penalty for the offence of destruction of a historical monument <div class="page" title="Page 6"> <div class="layoutArea"> <div class="column"> <p>The author does not agree with the standpoint of the Regional Court in Toruń that circumstances such as the nature and the circumstances in which a criminal offence was committed, the degree of guilt and social harmfulness of an act, as well as considerations pertaining to specific and general prevention warrant an increase in each daily rate of financial penalty imposed on the perpetrator of the destruction of a historical monument. It has been emphasized that the criminal code imposes a financial penalty according to the rate system in two stages. In the first stage, the number of day fine units is specified (taking into account the directives mentioned in articles 53 and 54 of the Criminal Code); in the second stage, the amount of a single day fine unit is specified (taking into account the recommendations pointed out in art. 33 para. 3 of the Criminal Code reflecting the perpetrator’s financial status). Therefore, the circumstances indicated by the Regional Court in Toruń warranted the increase of the number of daily instalments, whereas the perpetrator’s financial status warranted an increase in the day fine unit.</p> </div> </div> </div> Bartłomiej Gadecki Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 263 268 10.26881/gsp.2021.2.19 Denial of restitution in the United States Court of Appeals’ verdict in case of Marei von Saher v. Norton Museum of Art at Pasadena and Norton Simon Art Foundation <div class="page" title="Page 6"> <div class="layoutArea"> <div class="column"> <p>In a disappointing ruling that rejected the appeal of Holocaust claimant Marei von Saher, the United States Court of Appeals for the Ninth Circuit decided on 30 July 2018 that the Norton Simon Museum in Pasadena (respondent) can keep Lucas Cranach the Elder’s works Adam and Eve. Von Saher is the sole heir of the Jewish art dealer Jacques Goudstikker, who died in 1940 leaving behind a vast art collection that was then sold to German officer. The family has been trying to regain these items as they were sold in a very peculiar manner. This was von Saher’s third attempt at obtaining the restoration of the paintings. The district court in 2007 dismissed the action with prejudice. Von Saher appealed, and the court of appeals affirmed the sentence. After von Saher appealed for the last time, the court gave its final decision.</p> </div> </div> </div> Paula Chmielowska Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 269 275 10.26881/gsp.2021.2.20 The impact of natural heritage protection on the principles of unfair competition on the example of the Russian Natural Reserve Shulgan-Tash <div class="page" title="Page 4"> <div class="layoutArea"> <div class="column"> <p>Issues of heritage protection are interdisciplinary and are not limited only to the legal protection of monuments. Often, the legal problems of heritage protection institutions are related to the current affairs of everyday life, such as labor law, contract enforcement, or public procurement. In the judgment commented on here, the court resolved the issue of unfair competition in terms of naming public institutions. Can the name of the cave be reserved for the nature reserve? Is the museum a competitive institution for the nature reserve? The author of this commentary on the judgment of the Arbitration Court of the Republic of Bashkortostan has attempted to answer these and many other questions.</p> </div> </div> </div> Żaneta Gwardzińska Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 276 280 10.26881/gsp.2021.2.21 A state’s claim of ownership over a cultural object as a sovereign act and a question of jurisdiction <div class="page" title="Page 7"> <div class="layoutArea"> <div class="column"> <p>This commentary deals with issue of the jurisdiction of the U.S. domestic courts over the matter of ownership of a cultural object claimed by a private party as a result of an action undertaken by a state. The commentary also raises certain questions connected with the nature of the claim of ownership raised by a state. The ultimate conclusion of the commentary is approving of the standpoint expressed in the decision, evaluating it as a valuable precedent for cases involving cultural property.</p> </div> </div> </div> Agnieszka Plata Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 281 288 10.26881/gsp.2021.2.22 Seventh Seminar on Cultural Heritage Protection Law for young scholars, PhD students, and students held in honor of Professor Jan Pruszyński, 17–19 September 2020, Lubostroń, Poland <p>From 17 to 19 September 2020 the Seventh Seminar on Cultural Heritage Protection Law for young scholars, PhD students, and students in honor of Professor Jan Pruszyński was held online at the Palace in Lubostroń, Poland.</p> Małgorzata Węgrzak Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 291 292 International Conference “The 1995 UNIDROIT Convention: Cultural objects of the crossroad of rights and interest” to celebrate the 25th anniversary of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, 8–9 October 2020, Rome, I <div class="page" title="Page 1"> <div class="layoutArea"> <div class="column"> <p>The main goal of the 1995 Convention was to equate private and public law in the pursuit of establishing a framework for cross-national cooperation in the field of returning stolen or illegally exported cultural objects. Simultaneously, the UNIDROIT Convention strengthened the provisions of the 1970 UNESCO Convention2 by address- ing its weaknesses on issues of private law.</p> </div> </div> </div> Aleksandra Guss Copyright (c) 2021-07-06 2021-07-06 2(50)/2021 293 299