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


Memorandum submitted by Lyndel V Prott, Director, International Standards Unit, Division of Cultural Heritage, UNESCO

  1.  UNESCO (The United Nations Educational, Scientific and Cultural Organization) has a mandate in its Constitution adopted in London in 1945 to assure the conservation and protection of the world's cultural heritage and to recommend to the nations concerned the necessary international conventions. It has three international Conventions on this subject (Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 and Protocols 1954 and 1999; UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 and the Convention concerning the Protection of the World Cultural and Natural Heritage 1972) and is currently assisting States to draft another for the protection of the underwater cultural heritage.

  2.  The convention on illicit traffic has 91 States Parties and was the first universally applicable international agreement on the matter. However, some States, including some leading market States (Netherlands, Germany, United Kingdom) argued that its system was too difficult to implement. Following consideration of these problems by a group of experts in 1983, UNESCO asked UNIDROIT (l'Institut international pour l'Unification du Droit privé, Rome) to prepare a convention which would complement the UNESCO Convention by dealing with the private law aspects of the illicit trade. The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects was adopted in 1995, has 22 signatories and 12 States Parties. UNIDROIT (the International Institute for the Unification of Private Law) is a respected Institute founded in 1926 which has been responsible for about 70 studies in private law issues. About 40 of these have become international agreements. Most concern trade law. Britain has been a member of the organisation since 1948 and its Secretary-General 1984-1997 was British. UNESCO now promotes both Conventions together.

  3.  Both these instruments arise from a worldwide concern at the destruction of archaeological sites through organized looting by criminal gangs and pillage by impoverished populations to supply the international market. Theft of culturally important objects from museums, historic houses, religious institutions and private citizens is significant and growing. Some examples: hundreds of photographed images from shrines in Nepal in the 1970's now represented by empty niches, and remaining ones protected by grills, interfering with the religious observance of local people; nearly 4,000 movable museum objects stolen from five Iraqi museums immediately after Operation Desert Storm and bas-relief panels from Sennacherib's place at Nineveh looted and broken—fragments seen offered for sale in Europe; massive looting of museums, including the outstanding Kabul Museum, in Afghanistan; an unauthorised trade in church treasures from countries formerly behind the iron curtain including icons.

  4.  These thefts and damaged sites are represented in all countries including the wealthiest. They weigh, however, particularly heavily on developing countries with rich cultural resources but little or no possibility of buying such objects back when they are found in the international market. European countries have now the European Directive on the Return of Cultural Objects Unlawfully Removed from a Member State 1993 for the return of such items within the European Union, but many of them do not undertake the same obligation to the other States.

  5.  The Commonwealth Secretariat, at the request of New Zealand, developed a Model Law on the Return of Cultural Property which is promoted by all States of the Commonwealth except, it seems, the United Kingdom. The first Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 provides for the return of cultural property illicitly removed from occupied territory, but the United Kingdom is not party to either the Convention or its two Protocols.

  6.  Despite the initial reluctance of States with major art markets to join the UNESCO Convention 1970 Italy has been a Party since 1978, the United States since 1983, France joined in 1998 and Sweden and Switzerland have both announced their intention to accede. Other European States party to the Convention include Finland, Greece, Italy, Portugal, Russia and Spain. Many other States in the area such as the countries of Central and Eastern Europe and the Mediterranean are very substantially represented (see full list in documents attached (not printed)). Argentina, Australia and Canada, all States with important collecting interests and thriving art markets, as well as heritage items to be protected, are also Parties.

  7.  To encourage international collaboration against illicit traffic, UNESCO encourages participation in both Conventions. Ideally States would become party to both (as have Cambodia, China, Finland, Hungary, Italy and some others), but our principal aim is to get each of the major market States party to at least one of them so as to be publicly committed to the fight against illicit traffic.

  8.  The difference between them is briefly summarised as follows:

    —  UNESCO works on public law: requests are made through the diplomatic channel; the State requested then seizes the object and undertakes the necessary legal action to return it.

    —  UNIDROIT works on private law: the owner (where stolen) and the foreign State (where illegally exported) will sue the holder in the courts of the country of location: that State must provide a legal remedy for theft or illicit export of cultural property.

    —  UNESCO does not give a test for "good faith", leaving that to national systems of law to settle; UNIDROIT does give elements to be taken account of by judges in deciding whether someone is of good faith.

    —  UNIDROIT provides that clandestinely excavated antiquities are considered as stolen where that is consistent with national law of the place of excavation; UNESCO is silent on this point.

    —  UNESCO does not mention time limits for claims; UNIDROIT provides for limits of 50 (or 75 years in special cases) for claims for return, or within three years of knowledge of the location of the object.

  9.  Both Conventions

    —  do not affect penal law ie do not deal with punishment of offenders, only with the return of cultural property;

    —  are not retroactive;

    —  provide means of return for stolen and illegally exported cultural objects; and

    —  allow for compensation to good faith purchasers where necessary (not necessary in all systems);

    —  use the same definition of cultural objects, but UNESCO requires in addition that they have been designated by their national State.

  10.  To summarize: there are now five international instruments dealing with the illicit trade in cultural objects: the Protocol to the Hague Convention 1954; the UNESCO Convention 1970; the European Directive 1993, the UNIDROIT Convention 1995 and the Commonwealth Model Law. The United Kingdom is bound by only one, the European Directive, despite the significance of its art and antiquities market and the discovery in recent years of significant cases of smuggling and theft from countries such as China, Cyprus and Egypt.

  11.  UNESCO is firmly committed to cultural exchange and the importance of museum exchanges, acquisitions and exhibitions as well as a healthy art trade. However it is deeply concerned at the continuing and greatly increasing damage done to the heritage by crime and speculative trading in the products of illegal excavations. This memorandum does not attempt to give an evaluation that damage and destruction, which will be better evidenced by cultural experts giving evidence before your Committee, but our expert advisers and consultants, including non-governmental organizations such as ICOM (The International Council of Museums) and ICOMOS (the International Council for Monuments and Sites) have provided information over decades of severe deterioration of the cultural heritage from these causes.

  12.  UNESCO regards it as of the highest importance that the United Kingdom join in the international collaborative effort to minimize the illicit trade by ensuring that illicitly traded objects are not transmitted into the licit trade. While increasing efforts are being made by source countries to control the illegal trade, organized criminal groups are extremely well prepared and no country has the resources to totally control the problem. International co-operation is essential because such objects are usually outside the country of origin within 12 hours. Their tracing and return is therefore an international matter.

  13.  In addition, even without the tracing and return of cultural property, rules which oblige acquirers to inquire into the title would deter much of the illicit trade. A change of practice should be engendered which will assist collectors and dealers to inquire as to provenance. At present efforts to inquire are often blocked by a wall of silence which makes the honest the unwitting accomplice of the dishonest. Cultural property is the only major category of valuable property traded internationally for which documents of title are not required: land, shares, financial transactions, ships and hosts of other commodities all require detailed documentation. "Confidentiality" has become "secrecy" which prevents the tracing of illegally trafficked cultural property when it is found in a sale room, either back to the vendor, or to the eventual buyer. It is exactly in this fashion that museums are now finding themselves in possession of cultural property looted, stolen, or illegally expropriated as a result of the Second World War.

  14.  One of the objections apparently felt by the British authorities to the UNESCO Convention is that the definition of cultural property is too wide. Although the description is broad it should be noted that the property must also be "designated by the national State". Such designations for the most part reduce the amount of cultural property so covered. Furthermore the same description was used in the UNIDROIT Convention on the proposal of the Head of the British Delegation to those negotiations.

  15.  Another objection appears to be that it would be necessary to establish and maintain on the basis of a national inventory of protected property a list of public and private cultural property whose export would constitute an appreciable impoverishment of the national cultural heritage, and that this would require a national survey to identify all Waverley quality objects in the country. Both Australia and Canada run Waverley type export control systems. Both have assumed that the categories adopted for that system constitute a national inventory for the purposes of the Convention and that interpretation has not been challenged by any other State. The requirement of the inventory (Art 5(b) UNESCO Convention) is subject to the overriding provision in Article 5 "as appropriate for each country", which was specifically inserted to avoid problems for countries, such as most of the English-speaking countries, who do not, like France and most Continental countries, keep national lists of protected moveable cultural property. The United States has also not regarded itself as required to take action of the kind suggested.

  16.  A provision that the import of cultural property stolen from a museum or similar institution must be prohibited (Art 7(b)(i)) has apparently given rise to the apprehension that this will require the institution of a criminal offence. However Article 8 provides that the States Parties will impose "penalties or administrative sanctions" for infractions of Article 7(b). Criminal sanctions are therefore not required. Neither Australia nor Canada has so interpreted the section. The United States most frequently acts on the basis of a customs infraction (eg violation of an import prohibition or misdescription of goods) although it has other, pre-existing, legislation in force which could be used (the National Stolen Property Act).

  17.  Another objection made by the British authorities to accession to the UNESCO Convention appears to be that its machinery is cumbersome and will require a vast increase in bureaucracy for its implementation. States which have adopted the Convention and which have a significant import trade have in most cases opted for an advisory committee meeting once, twice or at the most, four times a year, and a small Secretariat of one or two persons, who may also have other functions. Nor does the Convention require the adoption of draconian customs inspections. Modern customs practice does not require inspection of all incoming passenger luggage or transported goods. Even for the most serious crimes such as the traffic in drugs, illegal immigration including that for prostitution, as well as arms and currency offences, reliance is made on spot checks, profiles and the information network. Similar systems satisfy the requirements of this Convention.

  18.  It is true that the system operates through the national administrations: requests for return are passed through the diplomatic channel, and the onus is then on the receiving authorities to take action to seize the object and conduct the necessary legal procedures to ensure its return. However, the UNIDROIT Convention operates in another fashion; there the owner (in the case of theft) or the country of origin (in the case of illicit export) must bring a case in the courts of the country of location. For a country such as the United Kingdom, this system may seem preferable since it places the onus on the complainant, not on the Government in receipt of the complaint. One or other of the Conventions should be practical for governments with the most diverse types of legal system and political philosophy.

  19.  An objection made by the British authorities to the UNIDROIT Convention (Hansard 7 February 2000 Answer to Parliamentary question 109245) is that its provisions are not compatible with those of the British legal system. This is, of course, the case for every country. If there were no incompatibility in the domestic legal systems there would be no need of an international convention to try to harmonize them. Traffickers are adept at exploiting the differences between legal systems, such as standards for assessing good faith, and periods of time limitation within which actions can be brought. The aim of the UNIDROIT Convention was to bring all systems to a basic minimum standard, without requiring States already having a higher standard of protection of stolen cultural property to lower theirs.

  20.  The UNIDROIT Convention will require less change for Common Law systems than it will for Civil Law systems, some of which may need to change their basic Civil Code (protection of the bona fide purchaser) and to allow return of a cultural object either contrary to an existing provision which protects the acquirer (eg Italy) or to require him to forego compensation for return when the object acquired is found to be stolen after three (Belgium, France, Netherlands) or five years (Switzerland). England will be able to retain its existing more generous rule of return to the owner, without compensation, at any time within six years of the last good faith purchase, (Article 9(1), UNIDROIT Convention). In this respect, continental systems will be moving closer to the English legal system.

  21.  Adoption of the UNIDROIT Convention by the United Kingdom would be to the advantage of the British owner from whom cultural objects are stolen, including those illegally excavated on their property. Two examples: The fourteenth century wooden figure of Sir Roger de Burghfield, stolen from a Berkshire Church in 1978 had to be bought back by the parishioners when discovered four months later in Belgium (the possessor would have been legally entitled to refuse to sell). At present, the Belgian owner of a stolen cultural object found less than six years later in the United Kingdom would be entitled to its return without paying compensation. An English owner could not recover his collection of Japanese miniatures offered at Sotheby's only two years after the theft, from a purchaser in Italy held to have good title in Italian Law. An Italian owner in such circumstances would have been able to recover from an English person who had bought stolen goods. It is, therefore, difficult to understand the view stated that changes to personal property law would arguably result in "a less generous position for original rightful owners of objects which are later stolen" (Hansard 7 February 2000).

  22.  Another concern expressed (Hansard 7 February 2000) has been that it would result in a "special regime for cultural objects". This has already happened in respect of cultural property displaced as a result of the Second World War: while paintings, furniture and antiquities are being returned despite a string of apparently legal transactions, victims of despoliation of other kinds of property (shares, businesses, motor vehicles, personal effects) are not being afforded the same rights of restitution. This again reflects the unique nature of cultural property which is generally recognized.

  23.  Another concern expressed about the UNIDROIT Convention is the need for changes to the time limitation periods within which claims can be brought (Hansard 7 February 2000). These changes and the periods chosen were vigorously debated at the diplomatic conference which adopted the Convention. However the view prevailed that cultural objects are unique, and cannot be substituted by compensation. Therefore returns should be facilitated, and many efforts at recovery are foiled because the owner of the goods does not know where they are. A few days exhibition at an auction room on the other side of the world is not sufficient notice to a tribal group in Africa or to the authorities in charge of a tomb found to have been looted in China. Nor can States be expected to consult the auction catalogues around the world of the exhibits of the thousands of dealers, of local antique fairs and markets in all the major dealing and collecting countries.

  24.  The impracticality of these suggestions is evident in the research now going on into the acquisition of cultural property displaced as a result of the Second World War. For this material it has been widely accepted that there should be some mitigation of the rules as to time limitation of claims, most illegal transactions having now occurred more than 50 years ago. States little affected by this particular complex of problems may well ask why extended limitation is allowed for this category, which probably affects more European cultural property than that elsewhere, and not for other cultural property of equal or greater importance.

  25.  Neither Convention is retroactive, and the new rules as to limitations will only apply after the date of entry into force of the Convention for the United Kingdom. It should be noted that the UNESCO Convention does not deal with limitations.

  26.  To summarize, the UNESCO and UNIDROIT Conventions provide alternative methods of dealing with the transmission of illegally traded cultural objects in international trade. Both provide a means of return of such objects where they can be sufficiently identified to meet the legal requirements of certainty (currently less than 12 per cent of stolen cultural objects are ever returned). Both require enhanced vigilance on the part of collectors (including museums, dealers and auction houses). Both establish patterns of international collaboration to hinder the illegal trade, and both require States of origin of the objects to be vigilant in protecting these objects at the source and in notifying and searching for them when they have illegally left the country.

  27.  Accession to either of these Conventions would be of considerable advantage to the United Kingdom itself. It would:

    —  enable robbed British owners to recover their objects when found outside the territory, which they can rarely do now;

    —  enable cultural objects exported in breach of the Waverley rules to be recovered;

    —  endorse the ICOM Code of Ethics already supported by most of the museums in Britain; and

    —  reinforce trust in the ethics and practice of the London art market.

  28.  To conclude, UNESCO believes that the accession of the United Kingdom to either the UNESCO or the UNIDROIT Convention would:

    —  mark a turning point in the international effort to hinder illicit traffic in cultural property;

    —  assist in harmonising worldwide action on seeking the provenance of cultural property so as to make it far more difficult to pass illegally trafficked cultural objects into the legal market and to make it easier to trace them;

    —  encourage other art market States to become Party to one or other of the Conventions;

    —  by encouraging other States to become Party to the UNIDROIT Convention, help raise the level of protection of cultural property closer to the British standard which ensues its return to an original owner without compensation being payable for a longer period of time than most European countries;

    —  encourage source countries to further enhance their actions to repress the illegal trade because of the evident effort of the wealthy States to assist them in this process; and

    —  reduce the number of cases involving illicit traffic in the London market, thus enhancing its role as a centre of the fine arts trade and promoting trust in its processes.

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