Select Committee on Culture, Media and Sport Appendices to the Minutes of Evidence


Memorandum submitted by Mr Richard Crewdson


1.  It is very good to know that the Culture, Media and Sport Committee of the House of Commons is conducting an inquiry into the return of Cultural Property which has been illicitly traded or removed. This is a problem which has been crying out for a common international solution for many years. The 1970 UNESCO Convention was an early attempt at a partial solution; it was a public law document and failed to deal with issues which related to private or civil law. It has been widely ratified, but in only a few countries which are parties to the Convention has it been properly implemented. The UNIDROIT Convention of 1995 offers a universal solution, linked to the related problem of international art theft, but there has so far been very little sense of urgency in regard to ratification. I intend to limit my evidence to these two Conventions as this has been my special interest for many years. Having read the Replies to Parliamentary Questions given by the Secretary of State for Culture, Media and Sport, on seventh and ninth February 2000 respectively, I find myself in agreement with his response so far as the UNESCO Convention is concerned, but very far from persuaded as regards the alleged problems associated with UNIDROIT.

  2.  I am a retired solicitor, having been in practice in the City of London from 1958-92. I was a partner in the firm Waterhouse & Co (Senior Partner 1987-9) and Field Fisher Waterhouse (Senior Partner 1989-92). During the last twelve years of my active career I became deeply involved in what was then the newly-evolving law relating to Cultural Property, which had previously been barely discernible (outside the USA) as a specialist branch of the law. From 1978-81 I acted for Dealers' organisations in their proceedings against Sotheby's and Christie's alleging price-fixing in respect of commission rates. When these proceedings were discontinued, I continued to act for the British Antique Dealers Association and was involved in the establishment of the "Art Trade Liaison Committee" which was a forum involving both auctioneers and dealers designed to improve the relationship and mutual understanding between the two sections of the trade. One of the Committee's first actions was to draft a Code of Conduct which was intend to satisfy the requirements of the UNESCO Convention on a self-regulatory basis (see Appendix[1]). In 1986 I had the opportunity of establishing a Cultural Property Law Committee within The Section on General Practice of the International Bar Association ("IBA"). I was the first Chairman of this Committee, a position which I held for four years. I am pleased to say that the Committee is still flourishing and greatly enlarged, currently with two English Lawyers as joint-Chairmen. I was also a founder member of the Council for the Prevention of Art Theft, and have been a non-executive Director of The Art Loss Register since its inception in 1990. After retiring from practice, I served on four occasions as the UNESCO "expert" in assisting certain African states in drafting new heritage legislation.

  3.  Through the international links provided by the IBA I became aware at a very early stage of the establishment by UNIDROIT of a Working Party set up at the request of UNESCO to consider how, by means of a universal law or a Convention, a solution could be found to the two related problems of (a) harmonising the civil law relating to title to stolen cultural property which was in the hands of a "good faith" purchaser, and (b) establishing an international code, independent of national law, for determining in what situations illegally exported cultural property should be returned. This Working Party first met in 1988, and I was invited to be a member, the only participant in the small group of about 14 who was a full-time practising lawyer. This was the beginning of my seven-year involvement with the draft Convention. In 1990 the Working Party produced its "Preliminary Draft" and thereafter there were four meetings, which I attended as the IBA "Observer", of the Inter-Governmental Committee of Experts (in ever-increasing numbers), leading eventually to the three-week Diplomatic Conference in June 1995. This Conference finally managed to produce a text which was agreed and adopted on 24 June 1995.


  4.  Members of the Committee will no doubt have familiarised themselves with the principal sections of the Convention, and will have observed that it is divided into five Chapters as follows:

    I  Scope of Application and Definition

    II  Restitution of Stolen Cultural Objects

    III  Return of Illegally Exported Cultural Objects

    IV  General Provisions

    V  Final Provisions

  Rather than comment on the whole Convention Article by Article, I intend to concentrate on what I believe to be its most controversial aspects, which I have listed in paragraph 8. As a preliminary comment however, I would like to deal with one point which may, or may not, be of substance, depending on whether the Committee gives a wide interpretation to its terms of reference, which do not expressly include the return of cultural objects which have been the subject of Theft.

  5.  As I mentioned in paragraph 3, the UNIDROIT Working Party was required under its terms of reference to look at the two related problems of international art theft and illegal export, and it became clear as work proceeded that the overlap between the two meant that it was essential that the two issues, which might at first sight appear to be quite separate, had to be dealt with together in one indivisible Convention. The similarity lay in the fact that two types of "tainted" cultural property were ending up in the possession of persons or institutions who were assumed to be innocent of any criminal act; in one case they had bought stolen property "in good faith", ie in ignorance of the theft; in the other case they had been misled on or were ignorant of the provenance of an illegally exported object. The difference between the two situations was that whereas the fact that theft is a crime is universally recognised worldwide, the question of what constitutes an illegal export is dependent on national legislation and varies very considerably from state to state, and it was this that led to the Convention being drafted with a different set of rules for each of the two situations. Apart from this the problem of extracting an art object from someone who genuinely thought that he or she had a good title was the same in each case. The Committee may have observed that at no point in the Convention is the expression "good faith" used. This was a deliberate omission as it was generally recognised that far too many "shady" transactions have escaped censure through being described as "bona fide", which could mean no more than "ask no questions and you'll be told no lies". The Convention sets standards based on concepts of Due Diligence, which it is interesting to note are now being more willingly and widely adopted throughout the Art Trade.

  6.  While the possessor of an illegally exported object would enjoy a better chance of being able to retain the art object if a claim is made for its return under Chapter III (see Article 5(3) and paragraphs 19-21 below), it became increasingly clear during the debates of the Inter-Governmental experts that in a great many cases the initial act leading ultimately to a claim for return would be an act of theft, which would mean that a claim under the Convention would be made under Chapter II rather than Chapter III. In fact Chapter III claims pure and simple would probably be limited to cases where a collector in a country such as Italy or Spain, which have very strict laws prohibiting export of cultural property, had smuggled a work of art out of the country for sale on the international market for his own benefit. By contrast consider the sort of circumstances where a Chapter III claim could be brought under Chapter II:

    (1)  art objects illegally exported following a theft from a private or public collection;

    (2)  illegally excavated objects originating in a state where all cultural objects buried in the ground are state property;

    (3)  art objects from a museum collection expropriated and exported by the curator;

    (4)  art objects entrusted to a repairer or restorer, and sold without permission and subsequently illegally exported; and

    (5)  art objects looted in civil war or expropriated from a private collection by an absolutist regime, thereafter finding their way on to the international market.

  In regard to example two it could be objected that US law has not yet finally accepted this principle, but it must be recognised that apart from the USA and the UK, there are very few countries in the world which do not regard "buried treasure" as state property.

  7.  The purpose of listing these examples is to show that there is a real interrelation between Chapters II and III of the Convention, and that it would therefore be impossible to give adequate consideration to the return of illicitly traded and exported cultural property and the impact which the UNIDROIT Convention could have in remedying the problem, unless it is recognised that a large proportion of the illicitly traded objects have been subject to an act of theft or equivalent misappropriation. It is to be hoped therefore that no thought of severing Chapter II from Chapter III and adopting one without the other (which is forbidden in any event under the terms of the Convention) would be given credence by the Committee, and that the return of stolen property (especially if transferred from one jurisdiction to another) will fall naturally within the Committee's terms of reference.


  8.  The UNIDROIT Convention has received much criticism since its formal adoption and publication, especially from representatives of the Art Trade in the USA and the UK. While one can readily understand the anxiety which yet another set of inhibitions that may restrict old-established practice and procedure can cause, it is less easy to sympathise with the amount of false assumptions and what sometimes appear to be deliberate misunderstandings which have been allowed to dominate the debate. I have therefore picked out the provisions in the Convention which have attracted most criticism (amongst government agencies as well as the Art Trade), with a view to putting them into a proper context and justifying their inclusion in the Convention. The following are pre-eminent in this respect:

    1.  Article 2: the definition of "cultural objects".

    2.  Articles 3(3)-(5) and 5(5): the limitation periods.

    3.  Article 3(2): unlawful excavation = theft.

    4.  Article 4: payment of compensation.

    5.  Article 5(3): the "objective test".

  9.  Definition: A great many commentators have forcefully expressed the opinion that the definition of "cultural objects" in Article 2 and in the Annex (which is identical to the list contained in Article 1 of the UNESCO Convention) is too vague and/or too extensive. Almost anything, it has been said, could be classified as a cultural object if such a definition is applied. Careful examination of the categories shows that this is not the case, and a further restriction is provided by the generic terms at the beginning of Article 2 requiring the objects to be "of importance for archaeology, prehistory, history, literature, art or science". There is no reason whatever why the wording of this Article should put a court in any difficulty in making a judicial decision as to whether an object was "cultural" or not. A wide definition is positively required in this Convention to allow it to operate as comprehensively as possible. In this respect the fact, as recently stated by the DCMS, that successive British governments have used the UNESCO definition clause as one of the reasons for declining to ratify it is totally irrelevant to UNIDROIT. To use this argument again as an argument for not ratifying UNIDROIT shows a lamentable lack of understanding of the nature of the Convention. By way of explanation it must be appreciated that a private, or civil, law convention such as UNIDROIT is substantially different from a public or criminal law convention such as UNESCO. In the latter case a convention will usually contain mandatory provisions, and persons affected by the subject matter of the convention are normally placed under an obligation to do or not to do something. For a convention of that sort it is necessary to define the subject matter as precisely and narrowly as possible. But the UNIDROIT Convention is permissive; there are no obligations, only rights which may be exercised by persons with property which comes within the definition. Whether such rights are exercised will of course depend on all sorts of factors, as in any other civil case, the most important being the cost of litigation in relation to the value of the object. But if, for example, a private individual for special reasons wishes to spend £5,000 to recover an object worth £500, is it right to deny that person the opportunity to do so by imposing artificial parameters on the meaning of "cultural object"?

  10.  The question of definition was, not surprisingly, debated at great length during the UNIDROIT Conferences, but those who would limit its application were unable to put forward convincing arguments that this would improve the Convention or make it more effective. Some delegates feared that there would be a deluge of UNIDROIT cases swamping the civil courts in states which were parties to the Convention, but against this view it was argued that the normal restraints (including litigating in a foreign country), coupled with the opportunities for negotiation and out-of-court settlement would preclude this happening.

  11.  Limitation Periods: The limitation periods provided for in the Convention have been described as radical. In the case of theft the "long-stop" period is 50 years from the date of theft, unless the object was "an integral part of an identified monument or archaeological site", or belonged to a public collection, in which case there is no prescriptive period unless the Contracting State limits the right to claim within its jurisdiction to 75 years (or a longer specified period) at the time of ratification. In the case of illegal export the period is 50 years from the date of export. In each case there is a short limitation period of three years from the date when the claimant knows the location of the object and the identity of the possessor.

  12.  In the United Kingdom the natural resistance to any departure from the usual six-year formula with its minor variants, as contained in the Limitation Act 1980, has been reinforced by the natural dislike in the Art Trade of anything which might threaten its competence to pass on a secure title to a work of art. This has led to strong criticism. In response there are, I think, four points to be made which in aggregate are sufficiently persuasive to justify a new approach to the very difficult problem of how to apply an even-handed prescriptive regime to cultural property and its return.

  13.  The first point is based on the very strange fact that although the signature of the UNIDROIT Convention occurred as recently as five years ago, at no time during the Conference debates, so far as I can remember, was the subject of what is now known as "holocaust related art" ever mentioned. From the outset one of the basic principles of the Convention was that it was to have no retrospective effect (see Article 10). If the issue of holocaust art had arisen, the non-retrospectivity principle would certainly have been the subject of hot debate. It is common knowledge however that this issue, which is now of such substantial importance within the art world, has emerged as if from nowhere in the last three to four years, and if any example were needed to prove that the ordinary rules of limitation are quite inappropriate in relation to cultural property, this phenomenon provides it. The work of agencies such as the Commission for Looted Art in Europe and the Commission for Art Recovery in the USA and research by the Art Loss Register has established that in very many cases the provenance of looted art objects can be traced with certainty. We therefore know too much about them to be able to draw a prescriptive veil over their past. This has already been recognised in regard to works of art in public collections. But private owners, no matter whether they purchased in good faith, are faced with the fact that their works of art, if so categorised, are unsaleable. They have the mark of Cain upon them. How this problem is to be resolved is within the purview of the Committee, but outside the scope of my argument. I have introduced it here solely for the purpose of demonstrating that cultural property needs a special prescriptive regime, and the UNIDROIT Convention provides one which is as good as any, even though it was not intended to be retrospective.

  14.  My second point follows on from the first to the extent that the impact of the holocaust art crisis on the Art Trade has coincided with a concerted effort (sponsored in the UK by the Council for the Prevention of Art Theft) by the Trade to move away from "good faith" dealings towards Due Diligence, which is of course one of the features of the UNIDROIT Convention, entitling to compensation those possessors of stolen art who went through the process of due diligence at the time of purchase. The need to establish provenance in relation to works of art looted by the Nazi regime has introduced a new sense of urgency within the Art Trade regarding the need for due diligence, and this is evident from the sudden increase in search applications received from dealers by the Art Loss Register in the last two years. But even if art objects have never circulated within looted art circles, the fact of going through the due diligence procedure (in case they had) greatly reduces the risk of a later challenge to the title; in other words the risk of loss associated with a much longer prescriptive period is minimised.

  15.  The Limitation Act of 1980 provides that the right of action to recover stolen property lapses six years after the first "bona fide" transaction following the theft. So a person attending a car boot sale who sees a painting on offer and asks no questions about its provenance, and who then buys it and keeps it in a dark corner of his house (or even hanging on the wall) for six years has succeeded in extinguishing the original owner's title. Although the UNIDROIT Convention makes no attempt to alter domestic law, and only applies to "claims of an international character", this harsh doctrine seems indefensible regardless of the terms of the Convention, and the Committee may wish to make recommendations on this point under a separate heading of the inquiry. To apply the standard limitation period to cultural property is harsh because each piece of cultural property is unique, and the remedial benefits of insurance cannot provide adequate recompense in the way they do routinely for the loss of consumer durables. Another problem is that identification of stolen cultural property (except in freak circumstances) is dependent on some form of movement. Opportunities for identification will normally only arise if the object is removed from its usual position (a) for sale, (b) for exhibition, (c) for repair or cleaning, (d) for valuation or (e) as a result of a second theft. The likelihood of any such movement occurring within six years of purchase is no better than 50/50. In the pre-computer age it could be said in support of the six-year time limit that memories faded and proof of ownership became more difficult after that time; but the introduction of computer databases, especially one dedicated to stolen art such as the Art Loss Register, provides the means to maintain a permanent record of what has been stolen and from whom. It also provides the answer to those who have felt that in order to justify a longer limitation period there must be some activity on the part of the victim of theft—the victim "must keep searching" for the stolen property. By registering the property on the database the search is automatically maintained. And the system works. In this connection it is interesting to note that in the latest issue of the Journal of the International Foundation for Art Research ("IFAR"), which was founded 30 years ago and was the pioneer organisation in the USA in the tracing of stolen art, it is recorded that:

    "Two major theft items that were highlighted in the very first issue of the Art Theft Archive Newsletter in 1979 were recovered this past year, 1999".

  16.  To conclude on this topic of limitation, it must be remembered that precedents do exist for varying the 1980 limitation periods. In 1986 a new formula (resembling the short period in UNIDROIT) was introduced in relation to the discovery of latent defects, and in 1993 the UK government accepted the EC Directive on the Return of Cultural Objects (93/7/EEC), which contains a limitation period of 30 years, extended to 75 years for public collections and other objects that are subject to "special protection arrangements". And one final footnote: in the State of New York, the courts of which try more art law cases than any in the world, the prescriptive law relating to works of art is currently in complete disarray and uncertainty.

  17.  Unlawful Excavations: Article 3(2) of the Convention reads as follows:

    "For the purposes of this Convention, a cultural object which has been unlawfully excavated or lawfully excavated but unlawfully retained shall be considered stolen, when consistent with the law of the State where the excavation took place".

  I have referred to this provision in paragraph 6, in explaining the close relationship between Chapter II and III of the Convention. The wording of Article 3(2) was a late addition to the draft, but it was found to be generally acceptable because of the widespread recognition of the special difficulties associated with the provenance of objects removed by clandestine excavation (as to which one only needs to be reminded of the case of the "Seveso" treasure and the various difficulties and embarrassments experienced by the Getty Museum in respect of its original collection of antiquities). No scientific method has yet been discovered for measuring how long a stone or metallic artefact has been dug out of the ground. A database cannot recognise objects the existence of which has never been recorded. It is therefore from the outset an uphill struggle to prove beyond reasonable doubt what was the place of origin of an unlawfully excavated object. For these reasons it was felt that the need to satisfy the objective test under Chapter III as well would be one burden too many for those claimant states whose laws provided in any event that buried cultural objects were state property.

  18.  Compensation: From the point of view of the UK legislature the most important feature of the UNIDROIT Convention is the acceptance by Continental European states, whose legal systems are mainly based on the Code Napoleon, of the common law principle applied to the law of theft which is summed up in the Latin adage "Nemo dat quod non habet"—no one can pass on a title which he does not have. This is the very opposite of the basic European principle that a good faith purchaser has a better title than the original victim of the theft. It was in fact a French initiative that brought about this radical change, to be applied only in the case of thefts of cultural property. The right to compensation, which generally exists in European law where the title of the original owner has not been extinguished, during the short period after a theft within which a stolen object can be legally recovered, was included in the UNIDROIT Convention as the price to be exacted for submitting to the common law principles. Under Article 4 it is payable where the possessor has exercised due diligence (4(4)), but if the possessor is entitled under the law of the state where the claim is brought to be indemnified by the person who transferred the property to the possessor, then the claimant is only liable to pay compensation if all "reasonable efforts" to recover from the transferor have failed (4(2)). This paragraph effectively preserves the status quo in respect of the right to compensation in both civil and common law jurisdictions, but it does provide an extra benefit to a person in a common law country who has exercised due diligence, but has nevertheless been stripped of possession of the work of art. Having moved from "good faith" to "due diligence" this is not unreasonable. Consider for example the case of a Belgian victim of theft of a painting. For some reason this person delays for a long time before registering the theft with the Art Loss Register or similar database, and in the meantime an English collector buys the painting. The purchase transaction is effected professionally with due diligence; searches and enquiries reveal no evidence of theft. Nevertheless, the Belgian owner is entitled to recover the painting. In such circumstances it must be right that the purchaser is compensated, and if the compensation cannot be recovered from the seller, then the original owner's delay in registration should make the owner liable for compensation. This is not such a hardship as it might at first appear as the liability for such compensation payments can be included as one of the insured risks regularly associated with ownership of works of art. I am assured on good authority that underwriters would be ready and willing to provide this cover.

  19.  The "objective test" (Article 5(3)): One of the criticisms of the 1970 UNESCO Convention is that it gave every contracting state an absolute right to categorise whatever cultural property it chose to include within its own jurisdiction as "inalienable", and such property if illegally exported had to be returned (UNESCO Article 7 b(ii)). During the two decades following its signing it became apparent that many states were applying this category almost universally, certainly so far as antiquities were concerned, and this was adversely affecting the relationship between what have been described as "victim states" and "market states". Such laws were seen as a positive encouragement to smuggling and the black market. It was also apparent that the states which applied these laws had neither the capability to control or prevent the smuggling nor to provide proper care for the huge hoard of unexportable artefacts which were languishing in unsuitable conditions in museum warehouses. The UNIDROIT Working Party therefore felt that the Convention should provide some middle way, reflecting a sensible compromise between the protection of the national heritage and the promotion of legitimate movement of cultural objects across the world, in the hope that this would enable the tightest restrictions to be eased and the incidence of smuggling and illicit traffic reduced. This was the basis for the drafting of Article 5. Unsurprisingly it became the most fiercely and long debated Article in the whole Convention. Conversely the representatives of the Art Trade, particularly in the USA, reserved their most vitriolic protests for the final version of the Article. Their complaint was that it gave the "victim states" the same right of return as the UNESCO Convention. "Market states", it was said, were being required in their own courts to apply the laws of the "victim state".

  20.  This assertion is ill-founded. It is perfectly true that the Convention gives a claimant state the right to make a claim, ie to commence court proceedings or to apply to a "competent authority" (undefined) requesting the return of a cultural object which it claims falls within the scope of the Article. However this does not mean that the request will be automatically granted. Except for one important difference the Working Party's criteria set out in the Preliminary Draft Convention remained intact throughout the long debate. The removal of the object claimed must "significantly impair" one or more of the interests listed in Article 5(3), or it must be established that the "the object is of significant cultural importance" for the requesting state. In the Preliminary draft, this was included as one of the interests which might be impaired and the wording was "the outstanding cultural importance of the object for the requesting state". The change of the word "outstanding" to "significant" which was forced on the final Drafting Committee by a huge majority of potential "victim states" (who outnumbered the "market states" at the Diplomatic Conference by about four to one) introduced a serious ambiguity into the underlying formula governing Chapter III of the Convention. "Significant" is a word which can be interpreted judicially in an almost infinite number of different ways, and it could take very many years before a pattern of judicial precedents emerged which covered every type of circumstance.

  21.   It could perhaps be argued that this is a matter of little consequence because most cases which came before the courts would be brought under Chapter II in any event. It would seem to me however that a better solution would be to provide the courts with some legislative guidance in the interpretation of the difficult word "significant", and I would like to suggest to the Committee that if they should feel minded to recommend in their Report that the UNIDROIT Convention should be ratified by the United Kingdom, they should also propose that the enabling legislation should contain a specific provision in regard to Article 5(3) which would have the effect of equating the expression "significant cultural importance" to the "Waverley criteria"[2] applicable to the licensing of the export of works of art from the UK. The criteria would of course need to be applied (with impartial expert advice from an amicus curiae where necessary) to the cultural environment of the requesting state, not as if it were a case of export from the UK. If one compares the "interests" listed in Article 5(3) of the Convention with the Waverley criteria it will be seen that there is already a certain overlap, but by linking the "significant cultural importance" with Waverley the concurrence would be complete, and there would then be a very substantial corpus of precedent available to the court.


  22.  I hope I have dealt fairly with the problem areas which have caused concern in relation to the UNIDROIT Convention, and have succeeded in disposing of some if not all the criticisms of which the Committee may be aware. I refer below, in the concluding paragraphs, to the reasons why it seems to me that the UK ratification of the UNIDROIT Convention would make the ratification of the UNESCO Convention unnecessary and a waste of national resources. One should note that the UNIDROIT Convention was designed either to stand alone or to complement the UNESCO Convention, and in the latter case it was the states which had already ratified UNESCO but had not benefited from doing so that it was primarily intended to help. The attractions of UNIDROIT are that it provides the means to achieve the same ends as those to which the earlier convention was directed without involving the law enforcement agencies of the state; it avoids the stigma which the earlier convention attached to the Art Trade, and it attempts to balance the natural acquisitive instincts prevalent in the "market states" against the natural prejudices which mould the attitudes of the "victim states". It recognises implicitly that both can do some damage to the worldwide cultural heritage. As mentioned in paragraph 18, from the British point of view the Convention has the great advantage of promoting as a universal law applicable to stolen art the principle of "Nemo dat", which is almost as significant in the art world as would be a decision in the world of motoring that all vehicles should in future be driven on the left. Having already in the very recent past recognised that the business of art dealing now requires a switch from bona fides to Due Diligence, art dealers in the UK have nothing to fear from the Convention. On the contrary the additional assurance that they could give to their clients, coupled with the greater chances of recovery of works of art which have been stolen, even if they have been removed to a Continental country, should encourage more people to become art collectors.

  23.  So far as the issues specifically mentioned by the Secretary of State on 7 February are concerned, I have, I hope, convincingly shown that the limitation period for the return of stolen or illegally exported cultural property must be changed; I have not been able to identify any other changes to personal property law which are said to be required, and if the matter of compensation is what is being referred to as "a less generous position" for original owners, I have shown that this would be an easily insurable risk. I therefore firmly believe, notwithstanding the recent statement by the Secretary of State, that the United Kingdom, which is not renowned for its speed in ratifying conventions, should on this occasion take the lead among European states. Its example in doing so would undoubtedly provide important encouragement to others who are interested but hesitant.


  24.  The number of states which have ratified the UNESCO Convention is now approaching 90, but I remain quite sceptical about its effectiveness and I regard the act of ratification by so many states as akin to membership of a club, all of whose members have the same ideals but for the most part lack the wherewithal to achieve them. The Convention is in fact a very demanding instrument, and it is not surprising therefore that so few states have been prepared to devote the resources required to implement it. So far as the UK is concerned some of the requirements of the Convention are standard practice or covered by self-regulation already; others require state intervention and expenditure on what could be a massive scale, which it would be impossible to justify by the extra results achieved. The Convention even contains provisions which could cause hardship and may conflict with the Convention on Human Rights, for example Articles 4 and 5 make no allowance for the rights of living artists (compare UNIDROIT Article 7).

  25.  The following summary focuses on the obligation to commit public funding to purposes which in the UK can be and are being attended to by private initiative or funding and/or self-regulation:

    (1)  Article 5: the obligation to "set up one or more . . . national services . . . for the protection of the national heritage":

    (a)  to draw up rules and regulations to protect the cultural heritage;

    (b)  to prepare a national inventory of protected property;

    (c)  to promote scientific institutions for preservation and presentation of cultural property;

    (d)  for archaeological purposes;

    (e)  to draw up rules and regulations for the art trade, collectors and curators;

    (f)  for educational purposes; and

    (g)  for publicising "the disappearance of items of cultural property".

    (2)  Article 6: the obligation to operate an export certificate system for all cultural property, together with enforcement of the system by prohibitions.

    (3)  Article 7: the obligation to prohibit museums from acquiring illegally exported cultural property or cultural property stolen from a museum, religious institution or public monument; and to operate a system for the return of such property.

    (4)  Article 10: the obligation to require antique dealers, "subject to penal or administrative sanctions", to maintain stock registers &c.

    (5)  Article 14: the obligation "to provide the national services responsible for the protection of its cultural heritage with an adequate budget".

    (6)  Article 16: to report to UNESCO as required by it on the legislative and administrative steps taken to comply with the Convention's requirements "together with details of the experience acquired in this field".

  26.  A great deal has been learnt since 1970 about the cultural heritage and how it should be cared for and protected. It is difficult to see how any of the provisions of the UNESCO Convention could possibly add to what is either already being achieved in the United Kingdom, or could be achieved by the ratification of the UNIDROIT Convention.

March 2000

1   Not printed. Back

2   These are:
(a)  that the item is so closely connected with the history of the state and its national life that its departure would be a misfortune:
(b)  that the item is of outstanding aesthetic importance; and
(c)  that the item is of outstanding importance to the study of some particular branch of art, learning or history. 

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