Available in Russian
Author: Andrey Saveliev
DOI: 10.21128/2226-2059-2024-2-20-42
Keywords: cultural property; cultural heritage; UNESCO Convention of 1970; interaction of international and national law; illicit export of cultural property; proportionality analysis
This article deals with decisions of the Netherlands state courts in a case regarding Crimean archaeological artefacts (“Scythian gold”). Ukraine and four Crimean museums had a dispute about to which entity the Allard Pearson Museum should return the Scythian Gold. The relevance of this question is based on the unique nature of the dispute about competing rights to cultural property of the State and non-State actors. The case in question concerns two main issues. First, the Dutch courts explored the problem of interpreting the concept of illicit export of cultural property in accordance with applicable international rules. Then the adjudicators performed a proportionality test to assess the balance of interests of the parties, both nationally and internationally. To interpret the concept of illicit export of cultural property, a narrow approach was used, incompatible with the factual background of the case. For the purposes of interpretation, the Dutch courts referred to implementing legislation, related international treaties, and legal acts of the European Union. Special importance was attached to parliamentary documents on treaty interpretation. The methods of the general theory of law were utilized to conduct the proportionality test at the domestic law level. The case law of the European Court of Human Rights was applied to assess the balance of interests within the framework of international law. By applying a critical method, the author examines the compliance of the Dutch court’s conclusions with current norms regarding cultural heritage, using the opinions of foreign researchers. The case is also of great importance for research on the interaction between international and national legal systems. The approach of the Amsterdam Court of Appeal appears to be more restrained, although to a lesser extent it satisfies the interests of States. In turn, the assessment of the balance of interests could be carried out in a more flexible way, meeting the interests of Crimea, the place of origin of the Scythian gold. Despite Russia’s formal non-participation in the dispute, the author discusses the problem that arose with the Crimean cultural objects in the context of the unresolved issue of return of cultural objects among post-Soviet States. In general, the case under consideration demonstrated the issue in international law of finding a compromise between the rights of States and other entities regarding objects of cultural heritage.
About the author: Andrey Saveliev – Ph.D. Student, the International Law Department, Kutafin Moscow State Law University, Moscow, Russia.
Citation: Saveliev A. (2024) Delo o “zolote skifov”: mezhdunarodno-pravovoy aspekt [International legal aspects of the Scythian gold case]. Mezhdunarodnoe pravosudie, vol. 14, no. 2, pp. 20–42. (In Russian).
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