APPENDIX 45
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;
— 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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