Treaties, the Law of Succession, and Cultural Artifacts: Ukrainian Art Restitution in the 1990s

George Bogden wrote “Treaties, the Law of Succession, and Cultural Artifacts: Ukrainian Art Restitution in the 1990s” as part of the 2016 Humanity in Action Diplomacy and Diversity Fellowship.

Controversies concerning the fate of plundered cultural artifacts often resurface during periods of systemic international legal reform. For example, a cascade of widespread and diverse litigation pertaining to both interstate and private theft of artwork emerged at the end of the Cold War. After the fall of the USSR, governments and nongovernmental institutions sought to redress the wrongful expatriation of objects acquired during periods of occupation or conflict. Perhaps the most famous representative controversy transpired in 1995, when the Hermitage Museum in St. Petersburg exhibited 74 Impressionist and Post-Impressionist paintings, created by Renoir, Monet, Degas, Picasso, and other important figures. The Red Army had expropriated all of these pieces from Germany in the aftermath of WWII. (1) German authorities and private citizens had long demanded their return. Unfortunately, Russia largely ignored these demands, as well as formal commitments to return them made by the USSR. Consequently, many of the disputed artifacts are fixtures or permanent installments in Russia’s Winter Palace.(2)

However, during this period, similar disputes were resolved equitably. One important example is that of Ukraine, which orchestrated its restitution through treaty succession. Treaty succession is the area of international law that concerns the extent to which new states take on international obligations signed by their predecessors. In examining this phenomenon, I first discuss the rich history surrounding this body of international law, particularly the degree to which new states have been accorded the right to renounce preexisting obligations. Next, I will assess Ukraine’s historical position with regard to inherited treaties. Third, I will discuss Ukraine’s decisions pertaining to treaties governing cultural artifacts. Finally, I will examine the contemporary resonance of these decisions.

Treaty Succession in the Twentieth Century

Principles of treaty succession have a long history of contestation. Ian Brownlie’s admonition that they constitute a “domain of great uncertainty and controversy” (3) remains as true today as it was when he compiled the first exhaustive reference entry on the subject in the fourth edition of Principles of Public International Law. Contemporary authors directly addressing treaty succession often begin their articles, as Jean D’Aspremont does, with an acknowledgement that “the international law of [treaty] succession has always been portrayed as being in a state of crisis.” (4) This common characterization has deep roots in the sequence of, on the one hand, historical attempts to consolidate or codify customary international law regarding treaty succession and, on the other hand, trends in state practice during the sweeping multiplications of newly-sovereign states entailed by decolonization and the dissolution of the Soviet Union. Even a cursory reprise of these events illuminates a perplexing prologue to the case addressed in this essay.

Many accounts begin at the high noon of decolonization, in the 1960s, when a strident doctrinal struggle began. It centered on the qualification of an old paradigm of treaty succession, known as “universal succession,” which avers that it is the responsibility of successor states to undertake the vast majority, if not all of the obligations signed by their predecessor entities. Unsurprisingly, this approach became associated with the will of departing colonial powers. Universal succession was developed as early as the seventeenth century by foundational thinkers in international law—Gentili, Grotius, and Pufendorf—on the basis of Roman notions of inheritance in civil law. When former European dominions gained independence, twentieth century standard-bearers of this customary conception of treaty succession, such as Daniel Patrick O’Connell, sought to elaborate existing prescriptions for universal succession as it had been understood in earlier epochs.

Post-colonial governments—then the newest subjects of international law—objected. When confronted with decisions regarding the inheritance of treaties, they blatantly deviated from the dominant legal prescriptions during the period they gained independence. In response, international lawyers harboring anti-imperialist sentiments sought to restate an alternate, competing doctrine based on principles of self-determination and emancipation. Emblematic progressive international lawyers, like Mohammed Bedjaoui, articulated the need for a framework for inherited treaties known colloquially as the “clean-slate.” This doctrine proposes that states are not automatically obligated to succeed to binding agreements to which their predecessors agreed, especially when the party expected to succeed contracted the relevant treaties in the course of colonial dependence. Casting universal succession as a reactionary means of maintaining an unjust existing political order, partisans for the clean-slate proposed a fundamental restructuring of treaty succession with the destruction of systemic colonial legal structures as a central, overriding consideration.

From the late 1960s through the late 1970s, a sustained effort was made to settle this doctrinal dissonance. International lawyers deliberated at significant length about how the codification of treaty succession should modify, incorporate, or discard one or the other existing antagonistic models for the inheritance of international obligations. After nine years of fact-finding and debate, the clean-slate appeared to have triumphed, with two documents codifying some of its central principles in certain domains: first, the 1978 Vienna Convention on State Succession in Respect of Treaties; and second, the 1983 Vienna Convention on State Succession in Respect of Property, Archives and Debt. Although numerous points of controversy were left unresolved—most notably the fate of international delicts,(5) policies on nationality, (6) and the inheritance of membership in international organizations (7) —the conventions came to signify the hopeful ascendance of a modern regime of treaty succession which enshrined the demise of imperialism in the field of succession law by equipping new states with means to throw off colonialist legal relations.

Yet despite this apparent resolution to the ambiguities raised by decolonization, the 1978 Convention posited an unresolved bifurcation between “newly-independent states,” understood by its drafters to be post-colonial states, as well as merely “new” states, which would gain sovereignty through processes separate from decolonization. Attempts to resolve potential difficulties arising from this dual designation were abandoned at the diplomatic conferences that convened to finalize the text of these agreements. (8) As a result, the text of the 1978 Convention crystalized with two sets of articles that distinguished between: 1) the consent for inherited obligations afforded to post-colonial states; and 2) the discouragement of such choices for certain new states.

Furthermore, state practice after the dissolution of the Union of Soviet Socialist Republics (USSR) appeared to make these documents obsolete before they were even enacted. States formerly under the dominion of the Soviet Union faced an uncertain position vis-à-vis which treaties they were obligated to inherit. (9) Instead of invoking the articles of the 1978 Vienna Convention, more often than not, these new governments joined with old powers to engage in forms of universal succession. A newly-sovereign Ukraine emerged amid this de facto resurgence of a previously tainted paradigm: universal succession.

Ukraine’s Inheritance of International Obligations

When Ukraine gained independence in 1991, the unresolved questions noted above became salient as it began to define its legal relations with other states and with the international community. Of the 15 states gaining independence as a result of the dissolution of the Soviet Union, Ukraine was unique in its relations with the former and emergent governments in Moscow for two reasons. First, Ukraine occupied a category of relatively greater sovereignty than other former satellite republics before the breakup of the USSR. Like Belarus, it was a founding member of the United Nations, and had previously invoked provisions of the 1936 Soviet Constitution to draft its own constitution which outlined powers in the domain of foreign policy. It also routinely, if not ritualistically, cited rights under the 1977 Soviet Constitution to undertake treaties with other countries outside the USSR.

Like the hypothetical carapace of government professed by the Soviet Union, which purported to be composed of a willing federation of countries which had input in ruling the communist empire, Ukraine’s capacity to exercise separate treaty relations were more form than function. Directives in this area from the Central Committee of the Soviet Union were treated as unquestionable edicts, with decentralized acts of succession on the part of Ukraine’s government constituting an afterthought in most cases. (10) Yet the existence—on paper—of separate mechanisms for treaty succession proved useful in the wake of the USSR’s supranational decline.

Consequently, from 1989 to 1991, the process of separation by Ukraine from the Soviet Union introduced numerous legal ambiguities in Ukraine’s relationship to the new Russian Federation that were inflected in the course of Kiev’s succession to treaties. (11) Multilateral obligations more often than not followed a similar course. Much like in the case of the Russian Federation, the treaty framework behind Ukrainian membership in the United Nations, as well as in bodies like UNESCO and the International Labor Organization, were sustained through simple, straightforward acts of succession. States with existing and emerging disputes with Ukraine over human rights violations did not question the new government in Kiev’s written notice to the U.N. Secretary-General in 1991 claiming succession to the foundational treaties of fundamental rights for which his office served as a depository.

Second, Ukraine faced a particularly contentious political relationship with the former USSR. Lingering toxicity between Kiev and Moscow was epitomized by the tragedy at Chernobyl, as well as by the frustrated early attempts by Ukrainian politicians to gain recognition for the sovereignty of the Rada, the new government’s representative body. The political quagmire which emerged was reflected in Ukraine’s decisions regarding its inheritance of treaties, dampening its initial enthusiasm to recognize the permanence of its membership in the Treaty for Conventional Armed Forces in Europe, the Nuclear Nonproliferation Treaty, as well as START I. (12) Disagreements over the fate of international legal relations led to retaliatory incidents, including the Russia Duma’s 1993 declaration that the Crimean city of Sevastopol had been and always would be a Russian city. (13) Russia’s 2014 invasion of Ukraine demonstrates the continued resonance of this mutual distrust, enmity, and one-sided intimidation.

Cultural Artifact’s Amid Ukraine’s Succession

Ukraine’s decisions pertaining to cultural artifacts represented a particularly important dimension of its course of treaty succession. At the time, both western and Ukrainian commentators noted that international legal inquiry into the fate of appropriated artwork had long represented one element of the perennial criticism of the post-war settlement, embodying the critique of one-sided retribution against Germany. (14) Occupying countries, which had demanded German restitution obligations, remained unwilling to account for German objects that had gone missing. The Soviet Union blatantly repudiated calls for reciprocal return of what it openly referred to as “military trophies,” (15) while simultaneously refusing to acknowledge evidence of art booty for over 45 years. (16) This denial ended in 1990 when the FRG and USSR signed the Treaty on Good Neighborliness, Partnership, and Cooperation. It held “that lost or unlawfully transferred art treasures which are located in their territory will be returned to their owners or their successors.”(17)

Ukraine undertook a uniquely dramatic act of treaty succession surrounding claims for restitution for cultural artifacts taken during the Second World War. With the fall of the USSR and the opening of relevant archives, it became clear that former Soviet republics retained significant shares of communist-looted art. (18) Through an act of succession to the 1990 treaty, Ukraine acknowledged and hastily returned a significant portion of the so-called “Kunstahalle collection.” (19) That batch of stolen artwork had previously gained international attention when Viktor Baldin, a former captain in the Red Army, confessed in 1982 to having transferred 364 objects from the Bremen Kunsthalle to the Soviet Union. (20) This unilateral act of succession, in which Kiev engaged in costly restitution measures without gaining concessions, illustrated an independent, purposeful act.

Resonance of Ukraine’s Case

The international legal significance of Ukraine’s decision in this area lies in the particular course the new government took, departing from the precedent laid by the preceding succession behavior of post-colonial states decades before. In several senses, Ukraine was in a similar position to these earlier nascent states. When choosing which treaties to inherit and which to renounce, officials in Kiev needed to manage often contentious relations with the external power, the USSR, that had established these obligations while formerly controlling its territory. During these consequential years in the early 1990s, Russia continued to act in a domineering and sometimes provocative fashion toward Ukraine, evoking expectations comparable to those of departed European colonial powers after their acquiesce to the independence of former dependencies. The eminent scholar of treaty succession, Matthew Craven, noted this dynamic, which emerged among the Russian Federation and the 15 new states created in the aftermath of the USSR’s dissolution. Yet, as he observes, this did not influence the law and conduct of treaty succession as it did in the 1960s: “there was no…anxiety as to the imperial orientation of Soviet rule, no sense that international law in a broader sense needed to be reshaped in light of what had happened.” He adds that “even where there might have been certain obvious parallels with what had happened during decolonization, there appears to have been an intuitive resistance to recognizing their existence.” (21)

Ukraine’s use of treaty succession in the category of cultural artifacts, then, serves as an example of this trend of state behavior away from operating on the distinction created by the 1978 Vienna Convention. That is, although Ukraine could have engaged with the alternative set of rights proposed by that document, it chose to act according to principles of stability in legal relations as well as for justice when returning looted cultural treasures. Instead of claiming under the terms of the 1978 Vienna Convention that it should be considered a “newly independent” state, which could renounce previous agreements between the USSR and Germany, Ukraine operated as what the Convention referred to as a “new” state. The emergent government in Kiev thus serves as an example of the outcomes created by erring toward compliance to preexisting treaties. It risked complicated political, economic, and legal problems for the sake of maintaining the nexus of legal relations which it professed were necessary to uphold.

This case may serve as an example for modelling art restitution and succession behavior among states gaining independence in the future. In many formerly stable regions, territorially-contiguous countries and their relationships among one another no longer exhibit assured constancy. Domestic forms of nationalism and other destructive sentiments threaten the permanence of political authority and the shape of borders across the world. These systemic shifts relate to the establishment of new states, and the fate of lost and stolen cultural artifacts. The precarious position of governments dissolved and reestablished in the aftermath of the Arab Spring as well as through the expansion of the Islamic State suggest that questions of succession will arise amid the reconstitution of countries in the Middle East and North Africa. New states could similarly enter the international system in the coming decades, either through violent secessions—in South Ossetia, Chechnya, or the Republic of Srpska—or through peaceful referendums within states long beset by independence movements—in Canada, India, France, Spain, and the United Kingdom, to name but a few. Just as questions regarding the lingering prospect of newly-attained sovereignty will remain perennial, so too will questions about these potential new polities’ succession to treaties as well as their return of illicitly-removed cultural artifacts.

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References

1. Paul Bator, An Essay on the International Trade in Art, 34 STAN. L. REv. 275 (1982); Carol L. Morris, In Search of a Stolen Masterpiece: The Causes and Remedies of International Art Theft, 15 SYRACUSE J. INT’L L. & CoM. 59 (1988).
2. Will Englund, Russia Unveils Seized Masterpieces, Baltimore Sun, Feb. 10, 1995, at IA.
3. Ian Brownlie, Principles of Public International Law, 4th Edition, (Oxford: Oxford University Press, 1990, 655.
4. Jean D’Aspremont, “Decolonization and the International Law of Succession: Between Regime Exhaustion and Paradigmatic Inconclusiveness,” Chinese Journal of International Law, 2013, 321. Other authors have made similar statements. See G Hafner and E. Kornfeind, “The Recent Austrian Practice of State Succession: Does the Clean Slate Still Exist?,” ARIEL 1996/1, 1, 2; Verzijl, J., International Law in Historical Perspective, 1974, 17; O’Connell, D.P., “Recent Problems of State Succession in Relation to New States,” 130 Hague Recueil, 1970, 95; M. Koskenniemi and P Eisemann, State Succession: Codification Tested against the Facts, (The Hague: Peace Palace Library, 1996), 65.
5. Michael Volkovitsch, “Righting Wrongs: Towards a New Theory of State Succession to Responsibility for International Delicts,” Columbia Law Review, 1992, 2162.
6. In the years following the 1978 Convention, numerous authors discussed the continued ambiguities in international legal questions pertaining to nationality that remained and were in some cases exacerbated by the codification. See Onuma Yasuaki, “Nationality and Territorial Change: In Search of the State of the Law,” Yale Journal of World Public Order, VIII , no.1, 1981, 1981; Ruth Donner, The Regulation of Nationality in International Law, 2nd ed., (Irvington-on-Hudson, N.Y.: Transnational Publications, 1994); Vaclav Mikulka, “First Report on State Succession and its Impact on the Nationality of Natural and Legal Persons,” CN4/467, Yearbook of the International Law Commission 1995, II; the “Second” (1996), “Third” (1997), and “Fourth Report” (1998) on this matter highlighted the development of issues discussed in the initial report and also brought up other subsequent difficulties; Tanel Kerikmäe (acting as Rapporteur), “Consequences of State Succession for Nationality” (also referred to as “The Estonian Report”), European Commission for Democracy Through Law of the Council of Europe, 10 February 1997.
7. Konrad G. Bühler, State succession and membership in international organizations: legal theories versus political pragmatism, Vol. 38, (Leiden: Martinus Nijhoff Publishers, 2001).
9. For a comprehensive summary of the legal justifications an drawn on this issue, see Brigitte Stern, La Succession d’états, 262 Recueil des cours, 2000, (especially pages) 223-224.
10. Ibid., 551-552.
11. In some areas of treaty law, Ukraine was able to directly assert its succession to treaties because the former Ukrainian Soviet Socialist Republic (UkSSR) had itself previously adopted the treaties. An illustrative bilateral example occurred with the United States, which immediately accepted upon request that 24 of 88 preexisting treaties between it and the USSR would remain intact after Ukrainian independence. Arrangements for succession were most often conducted through comprehensive, lengthy Exchanges of Notes, a formal diplomatic procedure. In the case of Germany, Ukraine included a special paragraph of “Joint Declarations” which articulated succession as a primary means of cooperation between Berlin and Kiev. Craven, 2009, 241
13. Verkhovny Sovyet of the Russian Federation, “Resolution on the Status of the City of Sevastopol,” Reproduced by the Government of the Russian Federation, July 9, 1993. Available online at: http://pravo.gov.ru/ proxy/ips/?docbody=&nd=102024769&intelsearch=%D1%E5%E2%E0%F1%F2%EE%EF% EE%EB%FF+5359+1993>.
14. G. Gisnburgs (ed), The Nuremberg Trial and International Law, (Dordrecht: Martinus Nijhoff Publishers, 1990), 67; Stanley Paulson, “Classical Legal Positivism at Nuremberg,” 4, 2, Philosophy and Public Affairs, 1975, 132.
15. The Soviet Union consistently stonewalled critics of the behavior of its army, issuing official statements to the effect that: “Objects belonging to the Germans that were exported after the seventh of May [1945] are Soviet property, as military trophies, and there is no case of replacement…Such property and property taken by troops, especially the Red Army, is without doubt military trophies and cannot be used for replacement; it is useless to make a list for such property.” See M. Kurtz, “The Allied Struggle over Cultural Restitution, 1942–1947,” International Journal of Cultural Property, 17, 2010, 186.
16. Tarja Långström, “‘War Trophies’ from World War II in Russia: Robbery or Restitution?” Finnish Yearbook in International Law, XI, 1998, 249. 56 Konstantin Akinsha, “Why Can’t Private Art ‘Trophiesl Go Home from the War?,” International Journal of Cultural Property, 17.02, 2010, 258.
17. “Treaty on Good Neighborliness, Partnership and Cooperation (FRG – USSR)”, Article 16, 9 November, 1990, International Legal Materials, 30, 1990. Available online at: https://www.asil.org/resources/international-legal-materials.
18. Steven Costello, “Must Russia Return the Artwork Stolen from Germany During World War II,” (1997-1998) 4 International Law Students Association Journal of Comparative and International Law, 4, 143.
19. Akinsha, 2010, 266.
20. Ibid., 258.
21. Craven 2009, 256.