APPENDIX 4
Memorandum submitted by Mr Richard Crewdson
INTRODUCTION
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.
THE UNIDROIT CONVENTION
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
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.
THE PROBLEM
AREAS
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.
ADOPTION AND
RATIFICATION; THE
BALANCE OF
ADVANTAGE
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.
THE UNESCO CONVENTION
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. Back
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