Cultural Property (Armed Conflict) Bill [Lords]

Written evidence submitted by Dr Sophie Vigneron, Kent Law School, University of Kent (CPB 16)

To: Members of the Public Bill Committee

Re: Clauses 16, 17 and 21 of the Cultural Property (Armed Conflict) Bill

1. I am the author of several articles on the protection of cultural heritage at a national and international level and of a book on the regulation of auctions in France and in England. I have been invited as an observer to the Meeting of States Parties to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (decision 189EX/18 Part III) in June 2012, I was invited to the Workshop on Illicit Traffic organised in Beirut by EUROMED HERITAGE 4 - strengthening legal and institutional framework in 2009. I have also acted as a consultant for the Council of Europe (since 2014).

2. SUMMARY: I wish to comment on clause 16 (include a reference to the convention in the text) and clause 21 (change ‘good faith and without knowledge’ to ‘exercised due care and attention’)

CLAUSE 17 (1) OFFENCE OF DEALING IN UNLAWFULLY EXPORTED CULTURAL PROPERTY

3. I fully support comments submitted by Professor Janet Ulph (University of Leicester) regarding the mental test (mens rea) in clause 17, where she argues that a subjective test of ‘knowing or suspecting’ would be best to deter secrecy in the art market.

CLAUSE 16 “UNLAWFULLY EXPORTED CULTURAL PROPERTY” ETC

4. I wish to comment upon the definition of unlawfully exported cultural property in clause 16 1(a) of the Bill which states:

a. (1)For the purposes of this Part property is "unlawfully exported cultural property" if-

i. (a)it has been unlawfully exported from a territory which at the time was occupied by a state that was a party to the First or Second Protocol , or

ii. (b)it has been unlawfully exported from a territory which at the time-

1. (i)was territory of a state that was a party to the First or Second Protocol, and

2. (ii )was occupied by another state.

b. (4)A reference in subsection (1) to a state that was a party to the First or Second Protocol is to a state that was a party to the First or Second Protocol at the time of the export.

c. (6) If in any proceedings an issue arises as to whether cultural property is unlawfully exported cultural property, a certificate by the Secretary of State is conclusive evidence as to whether, at a particular time, territory was occupied by a party to the First or Second Protocol or by any other state.

5. Clause 16 should include a reference to the Convention as well as to the First and Second Protocols in sub-section 1(a) and (b), sub-section 4 and sub-section 6. This omission means that countries that have ratified the Convention but neither of its Protocols would be excluded from the ambit of this section. As of today, 127 states have ratified the Convention but 20 of those states have ratified neither the First nor the Second Protocol; amongst those 20 states, many have recently had times of civil unrest: Angola, Chad, Côte d'Ivoire, Eritrea, Rwanda, Sudan, United Republic of Tanzania, Zimbabwe, Sri Lanka. The Convention’s aims would be better achieved if this clause 16 also included a reference to the Convention.

CLAUSE 21 COMPENSATION

6. I wish to comment upon the meaning of ‘good faith and without knowledge’ in clause 21(2) of the Bill which states:

(2) The court may provide for a forfeiture order to be conditional on the payment of compensation to a person who has acquired an interest only if satisfied that the person acquired the interest in good faith and without knowledge of the fact that the property had been unlawfully exported from occupied territory.

7. This section is commendable as it aims to protect good faith purchasers. However, good faith has now been replaced by a higher standard of due diligence in international, European and English law regarding the sale of cultural objects. Articles 4 and 6 of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects are relevant here. Article 6 (1) and (2) regarding the return of illegally exported cultural objects (which is also the purpose of Part 4 of the Cultural Property (Armed Conflict) Bill) state that ‘The possessor of a cultural object who acquired the object after it was illegally exported shall be entitled, at the time of its return, to payment by the requesting State of fair and reasonable compensation, provided that the possessor neither knew nor ought reasonably to have known at the time of acquisition that the object had been illegally exported. In determining whether the possessor knew or ought reasonably to have known that the cultural object had been illegally exported, regard shall be had to the circumstances of the acquisition, including the absence of an export certificate required under the law of the requesting State.’ Similarly, the 1993/7/EEC Directive of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State aimed to address the issue of illegal exports by facilitating the return of national treasures that were illicitly exported after its entry into force on January 1st 1993 (this coincided with the time limit set in the Council Regulation (EEC) 3911/92 of 9 December 1992 on the export of cultural goods). The Directive was amended several times, and article 10 of the last version (the 2014/60 Directive) has transferred the due diligence duty or ‘due care and attention in acquiring the object’ to the purchaser rather than the seller.

8. This has now become the Return of Cultural Objects Regulations 1994 (SI 1994/501) as amended by the Return of Cultural Object Regulations 2015 (SI 2015/1926) and came into force on 18 December 2015. Regulations 7 require that the ‘possessor exercised due care and attention’ when purchasing the object and then they refer to the circumstances of the acquisition such as the documentation on the object's provenance, the authorisations for removal required under the law of the requesting member State, the character of the parties, the price paid and whether the possessor consulted any accessible register of stolen cultural objects and any relevant information which he could reasonably have obtained, or took any other step which a reasonable person would have taken in the circumstances.

9. The reference to ‘good faith and without knowledge’ is not conducive of a higher standard of care by buyers or traders in the art world. It encourages prospective buyers to refrain from asking questions so that they do not know that the items were unlawfully removed. It does not embolden buyers to ask simple questions such as ‘Where does the object come from? When was the object imported into the United Kingdom? Does the object have a valid export licence?’ Practices such as gentlemen’s agreements, unwritten contracts, secret prices and anonymous parties should not be the norm.

10. In conclusion, inserting the words ‘possessor exercised due care and attention’ would also repeat the level of due diligence that is required for anti-money laundering purposes in the following situations: the seller refuses to disclose his/her identity, to answer questions, asks for a low price, wants to be paid in cash or pays in cash (British Art Market Federation). It is, thus, a small step to require dealers and purchasers to ask relevant questions dependent on the financial and cultural value of the object. The aims of the 1954 Convention, and its two protocols would be better achieved.

14 November 2016

 

Prepared 16th November 2016