Appropriateness, and, to be more precise - international law appropriateness of removal of cultural valuables lies in the centre of all the problems, related to restitution of cultural valuables. It is the most controversial problem as well.

As a fact, the appropriateness of removal of cultural valuables and announcing them Russian property was questioned by President of the Russian Federation. In his interpellation of the 15th of April, 1998, to the Constitutional Court of the Russian Federation President stated that some articles of the Law violate international obligations of Russia, naturally drawn from general principles and norms of international law, constituent acts of international organisations and international treaties of the Russian Federation.

In its verdict of the 20th of July, 1999, the Constitutional Court admitted some articles of the Law on cultural valuables being unconstitutional, at the same time agreeing with the lawmakers that compensatory restitution was a proper basis for removal of cultural valuables with the aim of compensation of the losses of national cultural funds.

Exactly this part of the verdict of the Constitutional Court causes critical attitude and irritation of our foreign colleague lawyers - specialists in international law. The articles of professor A.Blankenagel, published in Eastern European Review (No 4, 1999) and of professor M.Hartvig, published in the journal "Politics and Law" (NoNo1 and 2, 2000), show this very clearly.

In general the arguments of these lawyers come to the statement that not a single peace treaty or any other international law document, mentioned in the verdict of the Constitutional Court, doesn't contain clear indication of compensatory restitution. It is being accompanied by the statement that "eroded and indistinct wording of the Constitutional Court while quoting the documents leaves unclear the question of compensatory restitution as based on general principles of international court type of responsibility".

The opinion is raised that the treaties "don't have clear indication of the right to compensatory restitution".

International law regime of restitution (return) of property, removed by Germany from the territory of countries, occupied by it, was building up step by step at the end of World War II and straight after it.

It was started by the Governments of the USSR, USA and Great Britain, who. Together with other 15 countries - participants of Anti-Hitler Coalition secured their position in London Declaration of the 5th of January, 1943. The Declaration warned those, whom it might concern, that they "are going to do their best to eliminate the methods of property removal, practised by the Governments, with whom they are in the state of war, toward the countries and people, objected, without any reasons, to intervention and robbery". For gaining this they "…fully reserve the right to announce invalid any transaction or treat, related to property. Rights and interests of any kinds, located now or before on the territories, occupied or being controlled - directly or indirectly by Governments, with whom they are in the state of war, belonging or belonged to persons, including juridical persons, resided on these territories".

Besides this the Declaration stated that this warning "stays valid regardless the fact whether this transaction or treat had the from of open robbery or was wrapped in the form outwardly legitimate, allegedly based on voluntary character of this transaction or treat".

Articles of London Declaration were realised in peace treaties of 1947 and in other documents, enumerated by the Constitutional Court in Article 4 of the verdict. Peace treaties with former enemy states contained statements about acceptance by these states the principles of London Declaration and also the article, which established the fact that the obligation to make restitution was related to the whole amount of located in the country at this very moment identifiable property, displaced by force by one of the states from the territory of one of the United Nations, regardless the character of further deals, with the help of which the current owner came into possession of this property. (Treaties with Bulgaria, article 22; with Hungary, art. 24; with Italy, art. 75; with Romania, art.23).

Peace treaties also were solving the fate of the property of former enemy states, located on the territory of the United Nations states. Every participant of the treaty from the UN states had the right to take, keep, eliminate or to take any other action in relation to the property, located on its territory, and belonging to appropriate former enemy state or its citizens, i.e. private property as well.

At last, peace treaties don't contain the term or notion of "compensatory restitution" and nevertheless the necessity of the phenomena, defined in the Law on cultural valuables as a "compensatory restitution", is fixed there. The paragraph 9 of the article 75 of the Treaty with Italy states the following: "If in some cases it would be impossible for Italy to make restitution of the objects of art, historical or archaeological value, and which are the part of cultural property of the United Nations, from the territory of which these objects were taken by the Italian Army, Italy is obliged to pass to the interested United Nation objects of the same kind and approximately equal to displaced ones, because these kind of objects could be received in Italy.".

Mentioned above clause of the Treaty is not an International Law definition of compensatory restitution, but it states the signs and situation, being outside the usual restitution of property concerning the return of objects of art, which cannot be returned because if their loss or because of other reasons.

As for the definition of the compensatory restitution, given in paragraph 2 of art.4 of the Law on displaced cultural valuables, it is not an International Law one by it's essence, though it is absolutely clear, that Russian legislator calls "compensatory restitution" the obligation of Germany's allies to compensate, in this case, to Russia the caused damage in cases, when it is impossible to do in the form of usual restitution, i.e. the same, what is mentioned in the appropriate clauses of peace treaties.
Notion of compensatory restitution allowed the Constitutional Court to announce the Law clauses, related to displaced cultural valuables, being property of interested states and displaced cultural valuables, state affiliation of which is not defined, to be in contradiction with the Constitution of the Russian Federation (its articles 8 (part 2), 35, 55 (part 3) and 62 (part 3).

In connection with property of interested states the Court especially mentioned, that it cannot be the property of the Russian Federation and federal property, because otherwise the damage, caused to Russia by the state-aggressor, is practically being compensated at the expense of the countries, being the victims of the aggressor. This contradicts the general principles of international law, according to which the responsibility for starting and holding the aggressive war is laid upon the state-aggressor, and, consequently, the suffered country cannot be prosecuted. Actually, the Constitutional Court calls the peace treaties and other normative acts, enumerated in art. 4 of the verdict, the legislative sources, which regulated the responsibility of the countries of Hitler coalition in the form of reparation and restitution and which rendered to the Soviet Union and its allies the right to compensate the loss of their cultural valuables and defines the legislative after-effects of its implementation.

The Court didn't find it necessary to expound the content of international law norms and acts, just enumerating them, but it referred to art.107 of the statute of the UN organisation, which in a generalised form confirmed the legitimateness of actions and means, taken toward the countries of the axis, in particular, on the basis of acts, enumerated in the verdict. The Court especially stressed: "This is related to the whole complex of norms, stating the responsibility of Germany and it's allies, and, consequently, to compensatory restitution of cultural valuables as well, being implemented with the aim of compensation for the damage, caused to the Soviet Union as a victim state by eliminating and displacing it's cultural valuables on the occupied territories" ²

Additionally, I would like to note, that the norm of peace treaties about restitution of valuables not by their return but by the way of exchanging them was not the novelty of international law by the period of the end of World War II. Similar norm was contained in the Versailles treaty of 1919 and also other treaties of Versailles system (art. 184 of StGermain treaty with Austria; art.126 of Neji treaty with Bulgaria, art. 168 of Trianon treaty with Hungary, art. 420 of Sevr treaty with Turkey).

Article 247 of Versailles treaty obliged Germany to supply Luven University with manuscripts, incunabula, printed books, maps and collection items, corresponding by number and value to the objects, eliminated by Germany while firing Luven library, and also some paintings.

Implementation of obligations of compensatory restitution of objects, having historical, national, art and cultural character is known in our history as well. Under the condition of point 9 of article XI of Peace treaty between Russia and Ukraine from one side and Poland from the other of the 18th of March, 1921, Russia and Ukraine for the first time in history took the obligation to return Polish cultural valuables. The process also allowed the return of not only original valuables but also an appropriate replacement under the consent of both sides in a Joint Commission.³ Therefore the clauses of Peace treaties of 1947 were developing and clarifying the content of already used in practice norms of international law.

Differently from the restitution regime, established towards Bulgaria, Hungary, Italy, Romania and Finland, the return of cultural valuables from the territory of Germany was implemented on the basis of decisions taken by the allied countries and executive bodies, created by them.

At the same time, there were no obstacles to the process, when the rules on reparation of damages, provided by Peace treaties, and applied in international law order to Germany's allies, could be applied directly to Germany in general and to every occupation zone. They should be applied even in a tougher form, because there were no extenuating circumstances toward Germany and in Europe only toward Germany the demand of unconditional capitulation was put forward. This demand meant that, as it was mentioned in the Declaration about the defeat of Germany of the 5ht of June, 1945, "…Germany put itself into dependency from the conditions, which could be put on it now or in the future." ⁴

The practice of putting on Germany a number of obligations of political, economic and military character under the agreements between allied countries, in which Germany didn't participate, gained juridical form. Under the decision of Commission on international law of the UNO⁵ in the article 75 of Vienna Convention about the right of international treaties of 1969, it is written down that clauses of this Convention don't affect any obligations toward the treaty, which can emerge for state-aggressor as a result of means, adopted in co-ordination with the Statute of United Nations Organisation in connection with aggression from the side of this state.

As for the position of German states, FRG and GDR, in their joint declaration of the 15th of June 1990 specially mentioned: "Means for property withdrawal, taken on the basis of rights and leadership of occupation power (for 1945-1949) are irreversible". In accordance with clauses of point 1 art.41 of the Treaty between Federal Republic of Germany and German Democratic Republic about construction of German unity of the 31st of August 1990 (Treaty on Unification), the above mentioned Joint declaration is an inseparable part of it. In accordance with point 3 art.41 of Treaty on Unification FRG will not issue normative acts, which would contradict the above quoted part of Joint declaration.

Recognition of legitimateness, rightfulness and lawfulness of implemented in war years property withdrawals, their irreversibility and exclusion of their reconsideration or revision by German courts and other state bodies, and, consequently, exclusion of restitution, as indicates in its verdict of the 18th of April 1996 the Federal constitutional court of FRG, was a demand to FRG, the condition of consent of the USSR to reunion of Germany and signing the Treaty of the 12th of September 1990. This condition currently has the same obligatory for Germany power relatively to the Russian federation as a successor of the USSR.

Given by a legislator definition of compensatory restitution as a type of material international law responsibility of state-aggressor didn't raise objections of the Constitutional Court because it fully corresponds to a set up at the period of the beginning of the second World War international law.

In international law the imperative principle of general international law on prohibition of aggressive war, recognition of it as an international felony and setting up international responsibility for it's launching and holding is related to signing and empowering of the Treaty of 24th of July 1929 about the refusal from war as an instrument of national policy, i.e. a long time before the launching World War II. By 1939 the participants of this treaty, known as "Pact Brian-Kellogg", were 61states. We need to mention that Germany was one of the first participants.

In the verdict of Nuremberg tribunal of the 1st of October 1946 it was stated that "the refusal from war as an instrument of national policy suggests that such war is illegal in accordance to international law" and that "turning to aggressive war is not only illegal but also criminal"⁶.

The following conclusion could be drawn, that the Constitutional Court admitted or defined compensatory restitution as a subsidiary norm to the principle of responsibility of the state -aggressor, and not as independent and separate principle of international law.

In one case the Court stressed: "… The object of regulation of this normative act is not all cultural valuables, .. but only those, which were … displaced to the USSR…as an implementation of compensatory restitution, defined as a type of material international law responsibility of the state-aggressor…"⁷. In other case the Court states: "Removal of cultural valuables to the USSR as a result of World War II from the territories of Germany and it's former military allies as a compensatory restitution were based on international law and other acts…"⁸.

Argumentation and recommendations of the critics of the verdict concerning the order and methods of application of various categories of norms of international law are submitted without proper consideration of the competency of the Constitutional Court, defined by art.125 of the Constitution of the Russian Federation and Federal constitutional law "On Constitutional Court of the Russian Federation".

The competence of the Constitutional Court doesn't include the application of international treaties of the Russian Federation for solving specific cases. The Constitutional Court as a rule terns to international law for additional support of it's position at the cases and complaints concerned. In this very case the Court mentioned in it's verdict: "These constitutional arrangements are correspondent to general norms of international law - clauses of General declaration of human rights, especially in the part that nobody should be deprived of his property (article 17, point 2)"⁹.

More then that, the statement that "general principles of international law" is a usual law, not coded and not written down anywhere, requires a special proof. It seems to us appropriate in this connection to ask the following question: what are the principles of international law, coded by the Statute of UNO, signed by nearly 200 states?

It is obvious, that any analysis of correlation of the amount of jurisdiction of any court and of practical activity on implementation of justice, including a constitutional one, should be drawn from the clauses of legislative documents, defining their juridical position. This means that if the court has the proxy to turn to principles of international law or to international or national customs for the implementation of justice, the Constitutional Court of the Russian Federation cannot do so according to the current legislation concerning it's competence.

It can be drawn from part 4 of the article 15 of the Constitution of the Russian Federation which says that only generally accepted principles and norms of international law and international treaties of the Russian Federation are the part of Russian legislation. If the international custom doesn't cement generally accepted principle or norm of international law, it could not be admitted a part of legislative system of the Russian Federation, and, therefore, be used by the Constitutional Court. Besides, mentioned by the author general principles of international law are not covered by the term "generally accepted principles", used in the Constitution of the Russian Federation.
The regrets, and, mostly rebukes are expressed that the Constitutional Court excluded from it's analysis separate clauses of the Hague Convention, which, by the way, is called "Convention about laws and customs of a land war". In a submitted list of clauses of this Convention only paragraph 2 of art.56 could be related to the problem of restitution of cultural valuables.
I need to mention once more that international law regime of restitution of cultural valuables and accepted in connection to it acts of occupation powers on the territory of Germany on the removal of cultural valuables didn't cancel the appropriate clauses of the Hague convention about the prohibition of confiscation of cultural valuables. They were setting up a fair compensation of unprecedented in size of damage, caused by the state-aggressor to the USSR.
In connection to the Hague conventions it would be interesting to remind that by the note of the 7th of March 1955 the Ministry of Foreign Affairs of the USSR announced about the acceptance by the USSR Government of the ratified by Russia the Hague conventions of 1899 and 1907 with a proviso that they were accepted to the extent that they "did not contradict the Statute of the UNO and if they were not changed or replaced by further international agreements, signed by the USSR, such as … Geneva conventions of 1949 about the defence of war victims". ¹⁰

The content of the note was always explained that it meant not only the documents named in it but also other international agreements not coinciding with the clauses of the Hague convention. That is why the conclusion could be drawn that for the Russian Federation the Convention clauses could not have any power, cancelling or making illegal clauses of the acts, defining the forms of material responsibility of the states-aggressors, and also actions of the members of the UN, based on these acts. In connection with the Hague convention, a very important fact is mentioned by Dr Carl Reiter. He writes that the USSR in the form of diplomatic note of the 14th of July 1941 declared the readiness to follow the convention toward Germany under the condition of parity. But this proposal was waived away on the 25th of August 1941. And C.Reiter makes the following conclusion: "thus, systematic violation of norms of the Hague convention should be rendered as Germany's refusal to observe it, which deprives current Government of Germany the possibility to mention this Convention's rules".

The Constitutional Court didn't meet the expectations of German colleagues and didn't mention part 2 article 16 of the Treaty on good neighbourhood, partnership and co-operation between the USSR and FRG of the 9th of November 1990. In general the Constitutional Court was not created to mention normative acts but to use their clauses in the secured by the law way in the process of implementation of justice. According to this norm of the Treaty the sides agreed that lost and illegally taken cultural valuables, located on their territories, should be returned to their owners.

The Constitutional Court admitted removal of cultural valuables in the form of usual or compensatory restitution legal. Therefore these valuables could not be covered by any legislative acts, treating the problem of illegal removal, import or passing property rights. These article doesn't cover the valuables, legally taken to the territory of the USSR, and at the same time obliges FRG to return valuables, removed from the occupied during the World War II territories of the USSR. Application of this norm of the Treaty to the events and facts of the World War II should contradict to article 28 of the Vienna convention about the right of international treaties, which states:"If other intention is not seen from the treaty or is not established in other form, the treaty clauses are not obligatory for participants of the treaty in connection to any action or fact, which took place before the date of empowering the treaty for indicated participant, or in relation to any situation, which stopped existence before this date".

This could be repeated also in connection to the mentioned above UNESCO convention about the defence of cultural valuables in case of an armed conflict of 1945. Besides, this convention to no extent attacks legitimateness of removal of cultural valuables to the USSR, based on the clauses of acted at that moment international law. Clauses of the Convention could not be applied to mentioned in the Law facts of removal and cannot change international law qualification of these facts, produced at that period of time. Convergence of that practice and that norms and clauses of later international treaties of the Russian federation cannot be considered the violation of the latter.

It seems to me that the Constitutional Court's verdict on the case of constitutionality of the Law on displaced cultural valuables gives it a higher level of conformity with international law.

Candidate of Law
Senior scientific worker      V. Andrianov