Annex 1
THE TWO CONVENTIONS ON ILLICIT TRAFFIC;
UNESCO 1970 and UNIDROIT 1995
1. The UNESCO Convention on the Means of
Prohibiting and Preventing the Illicit Import, Export and Transfer
of Ownership of Cultural Property 1970 was the first worldwide
treaty on illicit traffic in cultural property. There are now
91 States party to that Convention.
2. 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. It was adopted in 1995, has 22 signatories
and 12 State Parties.
3. UNESCO now promotes both Conventions
as instruments to hinder the international illicit trade in cultural
objects. 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.
4. The difference between them is 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.
5. 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;
— allow for compensation to good faith
purchasers where necessary (not necessary in all systems); and
— use the same definition of cultural
objects, but UNESCO requires in addition that they have been designated
by their national State.
April 2000
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