Memorandum submitted by the British Art
Market Federation (BAMF)
The British Art Market Federation (BAMF) was
formed in 1996 to represent the UK's art and antiques market.
Its members are the British Antique Dealers' Association; The
Society of London Art Dealers; LAPADA, The Association of Art
and Antique Dealers; The Antiquity Dealers' Association; The Antiquarian
Booksellers' Association; The Society of Fine Art Auctioneers
and Valuers; The Royal Institution of Chartered Surveyors; Christie's;
Sotheby's; and Bonhams.
The British art market is comprised altogether
of 8,900 businesses, providing employment for 48,500. The UK accounts
for 60% by value of the EU art market and has a global market
share of 27%. In 2006, it achieved total sales of about £8
billion. (Source: Dr Clare McAndrew, The International Art
Market: A Survey of Europe in a Global Context, 2008, published
by The European Fine Art Foundation (TEFAF).)
The British art market is particularly active
in cross-border trade and in this respect is significantly the
largest global competitor to the US. In 2006, antiques and fine
art to the value of £2,423.1 million were imported to the
UK from outside the European Union. Exports totalled £3,092.8
million. (Source: UK overseas trade statistics, published in The
Antiques Trade Gazette, 2007)
BAMF is grateful to have the opportunity to
present its views on the Draft Cultural Property (Armed Conflicts)
Bill to the House of Commons Culture, Media and Sports Select
Committee.
BAMF is committed to supporting the legitimate
and open art market and to defending the UK's position in the
competitive global marketplace.
BAMF supports the aims of the Hague Convention
and of the present draft legislation, but is concerned that the
legislation should be clear and unambiguous in order to remove
uncertainties that could damage the legitimate market by deterring
bona fide owners from sending works of art for sale on
the British art market.
The draft legislation shares with the Convention
imprecise elements that will make it extremely difficult to perform
the due diligence that the new legislation requires. A new criminal
offence is being introduced which is uncertain in its scope and
application. As currently drafted, there appears to be no requirement
to demonstrate dishonesty; this gives rise to considerable concern.
It would mean that, despite honest attempts at due diligence in
this very difficult and ill-defined area, a British citizen could
be guilty of a criminal offence. There is a need for greater clarity
and definition if dealers and auctioneers are to make safe judgements
as to whether or not an object may be illicit within the meaning
of the law.
The draft legislation makes it an offence to
deal in unlawfully exported cultural property, knowing or having
reason to suspect that it has been unlawfully exported from territory
that is occupied by a party to the First or Second Protocol. Such
export would be deemed unlawful if it is in contradiction of the
laws of the territory from which the property is exported or is
in contravention of any rule of international law.
This affects any property, as described in Article
1(a) that is outside the UK when the legislation comes into force.
DUE DILIGENCE
Auction houses and dealers routinely conduct
due diligence before handling an object, in order to determine
to the best of their ability whether the owner has good title
and, in the case of items being brought here from overseas, whether
it has been exported legitimately. Such inquiries underpin the
functioning of the legitimate art market.
The draft legislation introduces the following
considerations when conducting due diligence:
1. Could the object have been in a territory
that has been occupied at any time since 1954?
2. If so, was it exported during the time
of occupation and was it exported legitimately?
3. Does the art object fall within the definition
of cultural property contained in Article 1(a) of the Convention?
The principal areas of difficulty for the art
market are therefore:
— How to know for certain which
territories are defined as being, or having been, occupied and
their dates of occupation.
— What were the export laws of
the occupied territories at the time of occupation? How were they
administered by the occupying power? What evidence is there of
legitimate export at that time?
— Does the cultural object in
question fall under the definition in Article 1(a)?
IDENTIFICATION OF
OCCUPIED TERRITORIES
The legislation affects any object fulfilling
the definition in Article 1(a) of the Convention, that may have
been exported from any territory defined as being occupied since
1954. In order to carry out the due diligence needed to research
the background history of an object and its possible connection
with an occupied territory, it is first necessary to know precisely
which territories are defined as being or having been occupied.
The legislation seeks to address this (Section
17(4)) by leaving it to the Secretary of State to certify whether
or not a territory was occupied, once proceedings had been commenced.
But this only provides an answer when an alleged offence has already
taken place. This does not eliminate the uncertainty caused by
the lack of information about which territories are or were occupied.
The clear remedy to this difficulty would be
the publication of a definitive list of territories considered
to have been occupied since 1954, with the dates of their occupation
and the details of the occupying power. As the Secretary of State
would presumably need such information in order to make a certification
under Section 17(4), there seems to be no reason why it could
not be made generally available when the legislation is introduced,
with a requirement that the information is kept up to date.
PROOF OF
LEGITIMATE EXPORT
Although the principal focus of the Hague Convention
is on looting, damage and theft, refugees could well leave occupied
territories with their own possessions. The Hague Convention of
1907 acknowledged the ownership of private property and mentioned
the need to respect it (Article 46). But a refugee can only be
confident of being able to sell his property in the legitimate
market if he can demonstrate that he has complied with the export
regulations applying at the time of occupation.
The Second Protocol to the Convention introduced
the concept that an object could be deemed to be illicit solely
because it was illegally exported. This creates a greater responsibility
on occupying powers to ensure that refugees leaving with their
own possessions are not deprived of their enjoyment of their property
by being denied adequate means of demonstrating that they had
exported it legitimately.
The Hague Convention and its protocols predate
the European Convention on Human Rights, which in Article 1, Protocol
1, protects the property rights of an individual. We are concerned
that the imprecision of some of the definitions in the Convention,
which are shared by the Draft Cultural Property (Armed Conflicts)
Bill, provide inadequate protection for a refugee leaving an occupied
territory with his own possessions. Although the Explanatory Notes
consider the draft legislation in the light of the ECHR, it is
difficult to see how a refugee could, in practice, ensure that
he continued to have peaceful enjoyment (ie unencumbered title)
of his property once he had left the occupied territory.
At the time of leaving he would need to be sure:
(i) Whether or not the object he was taking
with him conformed with the definition of protected property as
set out in Article 1(a) of the Convention (and in Part 1, Section
2 of the draft law). The drafting of Article 1(a) is imprecise
and therefore liable to unpredictable interpretation. It would
appear to focus only on objects of very significant international
importance, but clarification is needed as to whether the term
"of great importance to the cultural heritage of every people"
relates to the whole of Article 1(a).
(ii) What the export regulations were at
the time of departure in the territory from which he was fleeing.
(iii) Whether the export might also be in
contravention of "any rule of international law" (Part
4, Section 17(2)(b)) and what is meant by that term.
(iv) What proof he needed to obtain, and
from whom, in order to establish legitimate export.
No attempt is made in the draft legislation
to address these matters by introducing more precise definitions
or by setting out the obligations of an occupying power to provide
the means for a refugee to be able to establish conformity with
the Convention and the draft law. With regard to the protection
of refugees leaving with their own property, we would therefore
question whether the law, as it is currently drafted, is consistent
with Protocol 1 of the ECHR.
We would urge that British armed forces should
have standard procedures in place to oversee applications to export
works of art during periods of British occupation and that other
signatories to the Convention and its Protocols should be encouraged
to do likewise.
The problem of determining unencumbered title
is much greater in respect of objects that may have been taken
from occupied territories decades ago, where proof of legitimate
export may be hard to establish. In these circumstances, it will
be essential at least to have details of the export laws prevailing
at the time and how the occupying power managed them.
DEFINITION OF
CULTURAL PROPERTY
The definition of cultural property in Article
1(a) of the Convention is open to differing interpretations (see
comments above).
March 2008
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