Legal “Labyrinth” of the Scythian Gold
This article explores the legal controversy around the return of the collection of the antiquities (Scythian Gold) on loan from four Crimean museums (Crimean Museums) to the Allard Pierson Museum, Amsterdam (APM). The conflict has its roots in the geopolitical changes following the annexation of Crimea from Ukraine by the Russian Federation in February 2014. The analysis of the case reveals several challenges: The choice of appropriate legal norms in the absence of legal precedents that would provide straightforward guidance;1 the impact of the geopolitical situation on the legal outcome; and the correlation between legal and ethical norms.
In February 2014, a collection of archaeological objects found on the territory of Crimea was obtained by the APM for an exhibition titled “Crimea – the Golden Island in the Black Sea.”2 The APM signed loan agreements with the Crimean Museums and the State of Ukraine, governed by Ukrainian law. The agreements included an obligation of the APM to return the objects to the Crimean Museums at the end of the exhibition. Following the annexation of Crimea by Russia, both the Ukrainian State and the Crimean Museums claimed ownership of the collection and requested the return of the Scythian Gold, but the APM suspended the return. Later in 2014, the Crimean Museums initiated legal proceedings in the Amsterdam District Court demanding their return. The court had to determine which party had legitimate claims to request the return of the Scythian Gold.
The Crimean Museums substantiated their claim by the contractual obligations under the loan agreements, and their right of operational management granted to them by the Autonomous Republic of Crimea (ARC).3 Despite the change in Crimea’s geopolitical status, it claimed to have the strongest cultural heritage ties with the Scythian Gold and relied on the unity of museum collections principle.
The State of Ukraine, in its turn, relied on Ukrainian law, claiming that it owned the antiquities as part of the national museum fund based on the national Museum Law.4 It also referred to the decision of the Ministry of Culture of Ukraine of May 13, 2014 (the Order) granting the National Museum of History of Ukraine the authority to manage the Crimean Museums concerning the Scythian Gold in question. The State of Ukraine also relied on the 1970 UNESCO Convention (1970 UNESCO or Convention),5 arguing that the Crimean objects, as cultural goods within the meaning of 1970 UNESCO, can be reclaimed as “unlawfully exported” by the country from which the goods originated.
The first instance court agreed with the applicability of 1970 UNESCO and ruled in favor of Ukraine. While the Crimean Museums argued against its application, stating that there was no unlawful export in the meaning of the convention, the court applied a broad interpretation. It determined that 1970 UNESCO could still apply to the recovery of the cultural goods if they remain in another country without a valid export permit, even if initially brought in lawfully. It also stated that the Scythian Gold belong to Ukraine, as neither ARC nor Crimea were sovereign states and ARC was part of Ukraine at the time of the export.
The Amsterdam Court of Appeal affirmed the above decision, but on different grounds. It disagreed with the broad interpretation of 1970 UNESCO. According to the Court of Appeal, the Scythian Gold cannot be qualified as illegal export of cultural goods in light of the 1970 UNESCO, notwithstanding the expert’s opinion that the concept of export in the Convention must be seen as a continuous process beyond the moment of crossing the border. This author agrees. A broader interpretation would undermine the 1970 UNESCO’s primary purpose of opposing the “impoverishment of the cultural heritage” of a nation through “illicit import, export, and transfer of ownership” of cultural property.6 Export of the artifacts, authorized by the State of Ukraine, and their detention by APM could not and should not be categorized as illicit import or transfer of ownership in the meaning of the Convention. The Court of Appeal also rejected the arguments of the State of Ukraine on the relevance of the UNIDROIT Convention7 and the European Directive 2014/60/EU8 as the legal basis for the broad interpretation of 1970 UNESCO and the Dutch Heritage Act.
The Court of Appeal decided the case based on the Ukrainian laws that, according to its opinion, took precedence over contractual obligations and interests of the legal entities involved. It ruled that the Scythian Gold falls under the Ukrainian Museum Law and the Order because the State of Ukraine granted the export license. While it would be logical to assume that the central legal issue in this dispute would be proving rightful ownership, neither court considered it necessary to establish the ownership rights. This author agrees with the approach of the Court of Appeal, given the current legal framework and choice of law rules.
There are several controversial aspects that bring complexity to this case. The Court of Appeal ruled that although the Scythian Gold originated in Crimea, it was part of the cultural heritage of Ukraine that was safeguarding its interests by introducing regulations. An interesting question is whether cultural heritage has a closer connection with the sovereign state or the territory where the artifacts belong. According to Merriman, “national cultural heritage” is the basic legitimating concept, the grundnorm according to which the objects forming the cultural heritage should remain in or be returned to the national territory.9 In the legal dispute around the Scythian Gold, determining the national cultural heritage is a challenge. Since the Netherlands does not recognize the annexation of Crimea, its territory is treated by the Dutch courts as a part of the national territory of Ukraine. Suppose we hypothetically assume that the Netherlands at some point recognizes Crimea as part of Russian national territory. Would that lead us to believe that the decision on the Scythian Gold might be different? Most likely, yes. However, as mentioned above, in the current circumstances application of lex fori does lead to the decision taken by the Dutch Courts.
There is one more observation. The Court of Appeal did not substantiate as to why the public interest prevailed over contractual obligations from the cultural heritage standpoint. Instead, it referred to the Order enacted by the State of Ukraine after the annexation of Crimea.
Pending review in the cassation by the Dutch Supreme Court, the Scythian Gold is being kept in the APM. The decision will likely be affirmed, as cultural heritage case studies consistently show that courts and treaties favor and protect the cultural heritage of a State instead of the people,10 as was discussed above. The ethical question, however, remains much harder to resolve. There is a strong moral argument favoring the Crimean Museums with the strongest and longest cultural heritage ties with the Scythian Gold. At the same time, in the state of war between Russia and Ukraine, the determination of proper ethical rules is also controversial. This author believes that the case should be approached by the parties and international intermediaries from an access and preservation perspective, at least temporarily. That might mean finding an alternative way of the resolution, including loans to the national museums of other countries or, as suggested by other authors, touring exhibitions.11
On June 9, 2023 the Supreme Court of the Netherlands upheld the judgment of the Court of Appeal that Allard Pierson Museum must hand over the Crimean treasures to the State of Ukraine. In substantiating its decision, the Supreme Court ruled (i) that the Order is sufficiently accessible, precise, and foreseeable and that its application is not arbitrary, (ii) that the State of Ukraine has a legitimate interest in the protection of its cultural heritage, and (iii) that application of the Order as a temporary measure, namely pending stabilization in Crimea, represents a fair balance between the violation of the rights of the Crimean Museums and the interest of the State of Ukraine in the protection of its cultural heritage.
Olga Korneeva is an Associate Regional Counsel at a major multinational entertainment company, leading the legal functions in a specific region, providing strategic legal advice and support for the business, including media and theatrical distribution, movie and TV production, consumer products licensing, television broadcasting, and traditional and digital marketing. Ms. Korneeva is a recognized expert in intellectual property law, media and entertainment law, art law, informational technologies, cultural heritage, commercial transactions, and corporate governance. She is a 2023 graduate of Sotheby’s Institute of Art with a Master’s in Art Business. Any opinion given in the article is a reflection of the author’s personal work.
Endnotes
3 Prior to annexation Crimea had status of Autonomous Republic within the State of Ukraine.
4 The Law of Ukraine on Museums and Museum Affairs of June 29, 1996.
