MEMORANDUM SUBMITTED BY THE BRITISH ART
MARKET FEDERATION
Written evidence for the inquiry by the
Culture, Media and Sport Committee regarding the 1970 UNESCO Convention
on the means of prohibiting and preventing the illicit import,
export and transfer of ownership of cultural property ("The
Convention")
1. The British Art Market Federation ("BAMF")
was formed in 1996 to represent the various elements of the British
art trade. Its members are:
Antiquarian Booksellers' Association;
Antiquities Dealers Association;
The British Antique Dealers' Association;
The Fine Art Trade Guild;
LAPADA, the Association of Art and Antique Dealers;
The Royal Institution of Chartered Surveyors;
Society of Fine Art Auctioneers;
The Society of London Art Dealers; and
Statistical details of the British art market
are shown in Annex 1.
2. BAMF is committed to supporting the legitimate
and open art market and endorses the objective of the Convention
of preventing the illicit traffic in works of art.
3. BAMF agrees with the conclusions of HM
Government (House of Commons written answer, 7 February 2000)
that the Convention is inconsistent with English law. BAMF considers
that the Convention also fails to address the practical measures
that are needed if a solution to the problems that it identifies
is to be found.
4. In BAMF's view, the Convention does not
pinpoint the elements necessary if its objectives are to be met.
These are:
(a) a definition of cultural property which
would ensure that the Convention focuses on items of outstanding
national importance;
(b) a means of protecting good faith purchasers
by defining the duty of due diligence and establishing an agreed
limitation period; and
(c) proportionality between the aim of heritage
preservation and the burdens imposed on governments, businesses
and individuals.
5. THE FAILINGS
OF THE
CONVENTION
The principal failings of the Convention can
be seen to run contrary to the above consideration in that it;
(a) defines cultural property inadequately,
which will result in divergent interpretations by contracting
states, the possibility of cultural property being claimed by
more than one contracting state, and the enforcement of unreasonable
export laws;
(b) exacerbates the already unsatisfactory
legal uncertainties for buyers of cultural property in that there
is no defined test of due diligence nor any limitation period;
and
(c) prohibits the transfer of title to cultural
property when such transfers appear to have little impact on the
preservation of cultural heritage and creates a compliance cost
disproportionate to the benefit achieved.
6. WHAT ADOPTION
OF THE
CONVENTION WOULD
INVOLVE
Although the Convention covers a number of areas
that are already part of English law or practice, BAMF perceives
that its adoption in the UK would involve a number of new requirements
as set out in Annex 2. There may be some doubt as to whether,
in any event, the Convention would be compatible with mandatory
requirements if impending human rights legislation.
7. ADVANTAGES
OF THE
CONVENTION
The Convention has played a part in identifying
a problem and its principal contribution is to provide contracting
states with a framework for an extraterritorial jurisdiction for
the recovery of items stolen from institutions apparently without
limit in terms of value or time.
8. DISADVANTAGES
OF THE
CONVENTION
BAMF considers that the advantages of the Convention
are greatly outweighed by the disadvantages, comprising:
(a) very considerable practical difficulties
of proper implementation of the inventory requirements, due to
lack of knowledge of the existence and location of relevant cultural
property;
(b) a material increase in public expenditure
through requirements to monitor and control transfer and imports
of cultural property, and to liaise with other contracting states;
(c) the imposition of an additional compliance
burden on business;
(d) a disproportion between the material
restriction of property rights in relation to transfers of cultural
property and the apparently negligible impact on national heritage
where no export takes place; and
(e) the legal uncertainty that would arise
for buyers of cultural property arising from the lack of age or
value thresholds in the definition of cultural property, the absence
of any limitation period and the possibility of cultural property
being claimed by more than one contracting state.
9. THE NEED
FOR PRACTICAL
SOLUTIONS
While BAMF applauds the authors of the Convention
for drawing attention to the problem of the illicit art trade,
it is critical of the Convention for its failure to address the
practical issues that are needed to find a workable international
solution. BAMF suggests the following.
10. Develop a technologically sophisticated
private or governmental international database for stolen art.
This must be publicly available and would accept descriptions
and photographs of items stolen from individuals and institutions.
11. Commit resources of staff and money
to assist in training Customs Officers on how to use such a system.
12. Put pressure on Contracting States to
enforce their own export laws more effectively. This would involve
proper training of Customs officials and police forces regarding
methods of investigating and prosecuting art theft and smuggling;
and the establishment of transparent and workable systems of export
licensing, together with the encouragement of the enactment and
enforcement of anti-corruption laws in art source countries to
make sure that such systems are effective.
Annex 1
THE BRITISH ART MARKET STATISTICS (1998)
1. KEY INDICATORS
| (a) | Total Art Market Sales
| £3,288 million |
| (b) | Total Employees | 37,000
|
| (c) | Expenditure of UK market on ancillary service (Fairs, restorers/conservators, shipping, security printing/photography, banking, insurance, legal and accounting)
| £300 million |
2. STRUCTURE OF
BRITISH ART
MARKET
| Total Number of Businesses
| Total Employees | Total Sales (£millions)
|
| Dealers | 9,500 | 19,940
| 1,631.1 |
| Auctioneers | 754 | 17,123
| 1,656.8 |
| 10,254 | 37,063
| 3,287.9 |
3. IMPORTS/EXPORTS
| Total Imports for 1998 from non EU Countries
| £1,316 million |
| Total Exports for 1998 from non EU Countries
| £1,318 million |
4. THE BRITISH
ART MARKET'S
RELATIVE SIZE
TO EUROPE
AND USA
| Europe | USA
|
| Total Art Market Sales | £6,363 million
| £5,179 million |
The British market accounts for 52 per cent of total Western
Europe art sales. Its nearest rival is France with 31 per cent.
5. MARKET GROWTH
In the period 1994-98 the Western European art market, as
a whole, grew by 26 per cent. The US market increased by 81 per
cent and the UK market by 40 per cent.
Source
| (1, 2, 4 and 5) | The European Art Market 2000
Report prepared by Market Tracking International Ltd for the European Fine Art Foundation
|
| (3) | UK Overseas Trade Statistics
|
Annex 2
IMPLICATIONS FOR THE UK IF THE UNESCO CONVENTION WERE
TO BE RATIFIED
The introduction of legislative restrictions on transfers
of cultural property (Article 3).
The establishment of a national inventory of cultural property,
the export of which would constitute an appreciable impoverishment
of national cultural heritage (Article 5(b)).
The establishment of a mechanism for publicly recording the
disappearance of items of cultural property (Article 5(g)).
Increasing liaison with other contracting states regarding
offers of cultural property to museums (Article 7(a)).
Greater supervision of imports (Article 7(b)(I)).
The extension of the current legislation providing for restitution
of cultural property to European Union member states, to Contracting
States under the Convention, together with an adaptation in such
legislation of the definitions of cultural property covered, bearing
in mind the fact that there is no reference to age or value thresholds
in the Convention (Article 7(b)(ii)).
The introduction of legislation requiring dealers to maintain
registers containing details of cultural property and its origin,
the names and addresses of vendors, and to inform purchasers of
export prohibitions (Article 10(a)).
The introduction of criminal penalties to cover illegal imports
(Articles 8 and 10(a)).
Human Rights Act 1998 implications:
— restriction of the right to transfer designated
cultural property: restrictions on transfer, in the absence of
export, may amount to an illegitimate interference with the essential
human right to peaceful enjoyment of property (Article 3);
— payment of just compensation; this will be required
in order to alleviate the restriction on transfer; if mere notification
of transfer is required, the interference with peaceful enjoyment
is minimal, but if stringent restrictions are imposed (as in Italy),
compensation may be payable from the outset (Article 7(b)(ii));
and
— obligatory restitution; ensuring that a fair balance
has been struck between the demands of the community and the requirements
of the protection of individuals' fundamental rights in the light
of the wide definition of cultural property, the absence of limitation
periods, and the failure to define the nature and degree of due
diligence required of purchasers (Articles 4, 5, 6, 7 and 8).
Written evidence for the inquiry by the Culture, Media
and Sport Committee regarding the 1995 UNIDROIT Convention on
the International Return of Stolen or illegally exported cultural
objects ("The Convention")
1. BAMF agrees with the conclusions of HM Government
(House of Commons written answer, 7 February 2000) that the Convention
is inconsistent with English law. BAMF considers that the Convention
also fails to address the practical measures that are needed if
a solution to the problems that it identifies is to be found.
The wideness of the definition of "cultural objects",
the lack of financial thresholds, the length of the limitation
periods and the difficulties faced by possessors in establishing
what constitutes due diligence at the time of the acquisition,
are all major stumbling blocks and, until such time as these problems
are resolved, it is clear that the Convention does not provide
the effective and practical solutions that are required.
2. In BAMF's view, the Convention does not adequately
resolve the elements necessary if its objectives are to be met.
In BAMF's submissions regarding the 1970 UNESCO Convention ("the
UNESCO Convention") these were summarised as follows:
(a) a definition of cultural property which would ensure
that the focus is on items of outstanding national importance;
(b) a means of protecting good faith purchasers by defining
the duty of due diligence, establishing an agreed limitation period
and imposing a process for compensation claims against sovereign
states; and
(c) proportionality between the aim of heritage preservation
and the burdens imposed on individuals and businesses.
Although the Convention is in some ways an improvement on
the UNESCO Convention in these respects, it does not go far enough.
3. THE FAILINGS
OF THE
CONVENTION
The principal failings of the Convention are that it:
(a) defines cultural property inadequately, which will
result in divergent interpretations by contracting states, the
possibility of cultural property being claimed by more than one
contracting state, and the enforcement of unreasonable export
laws;
(b) exacerbates the already unsatisfactory legal uncertainties
for buyers of cultural property in that the limitation period
of 50 years prescribed is very lengthy, and there is no defined
test of due diligence;
(c) does not place any burden on a dispossessed owner
to register his claim and to locate the property;
(d) imposes a duty of knowledge on purchasers and possessors
of widely varying export laws; and
(e) lacks a method of enforcing compensation claims against
sovereign states.
4. WHAT ADOPTION
OF THE
CONVENTION WOULD
INVOLVE
Although the Convention covers a number of areas that are
already part of English law or practice, BAMF perceives that its
adoption in the UK would involve a number of new requirements
as set out in Annex 2. There may be some doubt as to whether,
in any event, the Convention would be compatible with mandatory
requirements of impending human rights legislation.
5. ADVANTAGES OF
THE CONVENTION
The Convention's principal contribution is to provide contracting
states with a framework for an extraterritorial jurisdiction for
the recovery of items stolen from institutions and tribal or indigenous
communities.
6. DISADVANTAGES OF
THE CONVENTION
BAMF considers that the advantages of the Convention are
greatly outweighed by the disadvantages, which comprise:
(a) the legal uncertainty that would arise for buyers
of cultural property arising from the lack of age of value thresholds
in the definition of cultural property, the length of the limitation
periods, the difficulties faced by possessors in establishing
due diligence at the time of acquisition and the possibility of
cultural property being claimed by more than one contracting state;
(b) the imposition of an additional compliance burden
on business; and
(c) the creation of an imbalance between the obligations
of the Contracting States and those of possessors.
7. THE NEED
FOR PRACTICAL
SOLUTIONS
While BAMF applauds the authors of the Convention for drawing
attention to the problem of the illicit art trade, it is critical
of the Convention, as it is of the UNESCO Convention, for its
failure to address the practical issues that are needed to find
a workable international solution. BAMF suggests the following.
8. Develop a technologically sophisticated private or
governmental international database for stolen art. This must
be publicly available and would accept descriptions and photographs
of items stolen from individuals and institutions.
9. Commit resources of staff and money to assist in training
Customs Officers on how to use such a system.
10. Put pressure on contracting states to enforce their
own export laws more effectively. This would involve proper training
of Customs officials and police forces regarding methods of investigating
and prosecuting art theft and smuggling; the establishment of
transparent and workable systems of export licensing together
with the encouragement of the enactment and enforcement of anti-corruption
laws in art source countries to ensure that such systems are effective.
Annex 1
IMPLICATIONS FOR THE UK IF THE UNIDROIT CONVENTION WERE
TO BE RATIFIED
The extension of the limitation period in respect of claims
for restitution to 50 years from the time of the theft; and the
removal of a limitation period in respect of claims for restitution
of a cultural object forming an integral part of an identified
monument or archaeological site or belonging to a public collection,
and in respect of claims regarding sacred or communally important
cultural objects belonging to and used by a tribal or indigenous
community (Article 3(3), (4), (5) and (8) and Article 5(5)).
The introduction of legislation requiring the right to compensation
to be subject to the double burden of proof that the possessor
neither knew nor ought reasonably to have known that the cultural
object was stolen, and that he exercised due diligence when acquiring
the cultural object (Article 4(1)).
Increasing liaison with other contracting states regarding
export rules applicable in those states and providing for adequate
and appropriate publicity of such rules in the UK (Article 3(2)
and (5), Article 5(2) and Article 6(2)).
Increasing judicial co-operation between contracting states
in respect of provisional and protective measures ancillary to
substantive claims and requests for restitution brought in other
contracting states (Article 8(3)).
Human Rights Act 1998 implications:
— obligatory restitution: ensuring that a fair balance
has been struck between the demands of the community at large
and the requirements of the protection of fundamental rights in
property in the light of the wide definition of "cultural
objects", the lengthy limitation period and the failure to
define the degree of due diligence required of purchasers (Article
3(1), (3), (4), (5) and (8), Article 4(4), Article 5(1) and (5)
and Article 6(1) and (2));
— ensuring that payment of compensation is fair
and reasonable (which may be difficult in the light of the double
burden of proof in circumstances where the degree of due diligence
required is unclear and the record-keeping of evidence of due
diligence is dependent on vendors' goodwill and conscientiousness)
(Article 4(1) and (2) and Article 6(1)); and
— ensuring that the burden of promoting the community
interest has not fallen principally and disproportionately on
the individual, the institution or business (Articles 3, 4, 5
and 6).
March 2000
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