object - Unesco

The 1995 Convention:
a way forward
Gaborone, Botswana
23-26 March 2015
Marina Schneider
SADC and UNIDROIT
Southern African Development Community: 15 Member States
UNIDROIT: 64 Member States (only South Africa within SADC)
Protection of cultural property - A
shared vision and a joint responsibility
UNIDROIT
UNESCO
WCO
INTERPOL
UNODC
National legislation
Civil society
ICOM
and other NGOs
Bilateral agreement
International convention
Code of ethics
International claims for
the restitution and
return of cultural
objects outside the
framework of
international
conventions

claims by the owner
victim of theft

claims by a State in
the event of illegal
export
THEFT
Claims by the owner victim of theft
 Interests
of trade:
protection of the good faith
acquirer
Conflict between
the dispossessed owner
and the good faith acquirer
 Interests
of the owner
time limitation to claim as
from identification of the
acquirer
 Intermediary
system
time limitation to claim as
from the day of theft
THEFT
Law applicable to claims by the owner
Issues of ownership
depend on the
law of the place
where the object
is situated
but at which
moment in time
???
 on
the day of the claim
 on
the day when the
object was acquired
 on
the day when the
object was stolen
THEFT
No unification of national laws =
uncertainty of the result
ILLEGAL EXPORT
Claims by a State in the event
of illegal export
Principle
No extraterritorial recognition of the
national laws prohibiting export
But new trends in doctrine and caselaw
ILLEGAL EXPORT
National export law – no
compulsory recognition abroad

The starting point – the foundations of a genuine

But with some recognised weaknesses for
restitution - it raises a number of important private law
international law of cultural property and in enunciation of certain
values and principles
questions such as its impact on the existing rules of national law
concerning the protection of the good faith purchaser, without
solving them because it refers the solution to national legislations

The 1970 Convention needs an
implementing legislation – it seems that many States
have not enacted specific legislatives measures to implement the
Convention
Prevention
1970 UNESCO
Convention
Restitution
International
Cooperation
1970 Convention & SADC
Angola
Ratification
07.11.1991
Botswana
Ratification
Rep. Dem. Congo
Ratification
23.09.1974
Lesotho
Ratification
17.07.2013
Madagascar
Ratification
21.06.1989
Malawi
Ratification
Mauritius
Acceptance
27.02.1978
Mozambique
Ratification
Namibia
Ratification
Seychelles
Ratification
28.05.2004
Un. Rep. of Tanzania
Ratification
02.08.1977
Zambia
Ratification
21.06.1985
Zimbabwe
Acceptance
30.05.2006
South Africa
Acceptance
18.12.2003
Swaziland
Acceptance
30.10.2012
1995 UNIDROIT
Convention
Restitution
Private law aspects
of the protection of cultural
heritage
1995 Convention & SADC
Angola
Accession
Eff. 01.12.2014
Botswana
Accession
Rep. Dem. Congo
Accession
Lesotho
Accession
Madagascar
Accession
Malawi
Accession
Mauritius
Accession
Mozambique
Accession
Namibia
Accession
Seychelles
Accession
Un. Rep. of Tanzania
Accession
Zambia
Signature in
1995
Ratification
Zimbabwe
Accession
Never
deposited
South Africa
Accession
To be
deposited
Swaziland
Accession
Careful compatibility and
complementarity between
the 1970 UNESCO and
the 1995 UNIDROIT Conventions
Compromise
DEFINITION

Most States have a set of legislative acts which govern the
protection of the cultural heritage. The concept of cultural
object – terminology used is different (cultural object,
antiquities, moveable or immoveable property or objects of a
historic or cultural nature, cultural heritage, …)

The legislative technique of legal definition differs (general
definition based on the criterion of cultural, historic, artistic,
traditional or aesthetic value..., application of a specific date
or the criterion of age to define antiquities to be protected)
The variety of definitions precludes the establishment of
matches with the definitions used in international conventions

 international cooperation is more difficult in the fields of
preventing and combating traffic

DEFINITION
UNESCO 1970 (art. 1) and UNIDROIT 1995 (art. 2) share
the same definition (importance and categories)
Article 2
…. cultural objects are those which, on religious or
secular grounds, are of importance for archaeology,
prehistory, history, literature, art or science and belong to
one of the categories listed in the Annex to this
Convention.
.
An important difference
objects must not be “specifically designated” by the
State to benefit from the protection given by the 1995
Convention
Two procedures
Return of
illegally
exported
cultural objects

Restitution of
stolen cultural
objects

UNESCO 1970
The restitution of stolen objects
Article 7(b)(ii)

Restitution of cultural property stolen in a museum or a
religious or secular public monument or similar institution ...

Provided that such property is documented as appertaining to
the inventory of that institution

States Parties undertake to take appropriate steps to... return
any such property … provided that the requesting State shall
pay just compensation to an innocent purchaser...
UNIDROIT 1995
The restitution of stolen objects
The principle
 The possessor of a cultural object which has been
stolen shall return it (Article 3(1)) 
Two accessory rules
 Time limitations to claim
 Right to payment of a reasonable compensation
for the good faith acquirer
UNIDROIT 1995
Right to payment of a reasonable
compensation for the “good faith” acquirer
Notion existing in the 1st Protocol to the 1954 and 1970
UNESCO Conventions but no criteria (national law where
good faith is often presumed)
UNIDROIT – severe conditions to admit “good faith”
The “possessor neither knew nor ought reasonably to have
known that the object was stolen and can prove that it
exercised due diligence when acquiring the object” (art. 4(1))
UNESCO 1970
The return of illegally exported
cultural objects
The Convention contains no specific measures
concerning the obligation for States to conform to
other countries’ export laws
Art. 7(a): take measures to prevent museums from acquiring cultural property
which has been illegally exported …
Art. 9: in case of danger for the archaeological heritage States Parties undertake to
participate in a concerted international effort to carry out the necessary concrete
measures, including the control of exports ...
Art. 13(b): cooperation in facilitating the earliest possible restitution of illicitly
exported objects to its rightful owner
....
UNIDROIT 1995
The return of illegally exported
cultural objects
The principle
Removal of the object … contrary to the law regulating
the export of cultural objects (Article 5(1)), and
The export significantly impairs a scientific or historic
interest, […] or the object is of significant interest for the
requesting State (Article 5(3))
The conditions for return
-
Time limitations
Compensation or other possibilities
UNESCO Database of National Cultural Heritage laws
Number of texts available for:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Angola: 11
Botswana: 7
Rep. Dem. of Congo: 7
Lesotho: 8
Madagascar: 23
Malawi: 12
Mauritius: 10
Mozambique: 6
Namibia: 3
Seychelles: 9
South Africa: 8
Swaziland: 6
United Rep. of Tanzania: 7
Zambia: 8
Zimbabwe: 6
UNESCO 1970
Archaeological objects
Article 9
Any State Party …, whose cultural
patrimony is in jeopardy from pillages
of archaeological or ethnological
materials may call upon other States
who are affected (bilateral
agreements)
UNIDROIT 1995
Archaeological objects
Specific provisions, for example
Illicit excavation = theft
….., a cultural object which has been unlawfully
excavated or lawfully excavated but unlawfully retained
shall be considered stolen, when consistent with the law
of the State where the excavation took place (Article 3(2))
No time limitation to action
[...] a claim for restitution of an object forming an
integral part of an identified monument or
archaeological site […] shall not be subject to time
limitations other than a period of three years […]
@ Anfrew Burke
Article 3(2) 1995 Convention
An unlawfully excavated cultural object = a stolen
object, when consistent with the law of the State
where the excavation took place.
Has the legislation claiming State ownership really
the effect claimed, in particular for undiscovered
archaeological objects?
 UNESCO – UNIDROIT Model Provisions on
State Ownership of Undiscovered Cultural
Objects with explanatory guidelines
© R. Velasco Alonso, INAH
UNESCO and UNIDROIT
Model provisions on State Ownership on Cultural Heritage
•
Adopted in 2011, 6 provisions which carefully articulate the legal status
of undiscovered cultural property as well as the methods by which it is
enforced domestically and internationally
•
Objective: Assist domestic legislative bodies in the establishment of a
legislative framework for heritage protection, to adopt effective
legislation for the establishment and recognition of the State’s
ownership of undiscovered cultural objects
•
Available with explanatory guidelines in English and French
•
have to be considered as a preventive mechanism for States,
especially with rich archaeological heritage
UNIDROIT 1995
traditional or ritual use of the object by
a tribal or indigenous community
Preamble
DEEPLY CONCERNED by the illicit trade in cultural objects and the irreparable
damage frequently caused by it, both to these objects themselves and to the
cultural heritage of national, tribal, indigenous or other communities, and also
to the heritage of all peoples, …
Article 3(8)
… a claim for restitution of a sacred or communally important cultural object
belonging to and used by a tribal or indigenous community in a Contracting
State as part of that community's traditional or ritual use, shall be subject to
the time limitation applicable to public collections.
Article 5(3)(d)
… the removal of the object from its territory significantly impairs one or more
of the following interests:
(d) the traditional or ritual use of the object by a tribal or indigenous
community,
Article 7(2)
the provisions of this Chapter shall apply where a cultural object was made by
a member or members of a tribal or indigenous community for traditional or
ritual use by that community and the object will be returned to that
community.
UNIDROIT 1995
A base for the future
(use of the Convention as a benchmark for
due diligence evaluation)
A strong influence on national legislations and on case law
also in countries not Parties to the Convention
Recast of the European Directive
2013 - The European Commission proposed to strengthen the
possibility for restitution available to Member States since the
current legislation is not proving sufficiently effective in achieving
the recovery of unlawfully removed national treasures.
On 15 May 2014, the European Parliament and the Council
adopted Directive 2014/60/EU on the return of cultural objects
unlawfully removed from the territory of a Member State .
The new provisions of the Directive - which is a recast of Directive
93/7/EEC - shall apply from 19 December 2015.
Recast of the European Directive
Most important changes



Time-limit for initiating return proceedings
Burden of proof (“good faith”) for the purpose of
compensation on the possessor
Criteria for “due care and attention”
All “taken” from the 1995 UNIDROIT
Convention
Directive 2014/60
(Article 10.2)
UNIDROIT (Article 4(4))
4) In determining whether the
possessor exercised due
In determining whether the
diligence, regard shall be had
possessor exercised due care
and attention, consideration shall to all the circumstances of the
be given to all the circumstances acquisition, including
 the character of the parties,
of the acquisition, in particular
 the documentation on the
 the price paid,
object’s provenance, the
 whether the possessor
authorisations for removal
consulted any reasonably
required under the law of the
accessible register of stolen
requesting Member State,
cultural objects,
 the character of the parties,
 whether the possessor
 the price paid,
consulted any other relevant
 whether the possessor
information and
consulted any accessible register
documentation which it
of stolen cultural objects and any
could reasonably have
relevant information which he
obtained,
could reasonably have obtained,
 and whether the possessor
or took any other step which a
consulted accessible
reasonable person would have
agencies or took any other
taken in the circumstances.
step that a reasonable
person would have taken in
the circumstances.
1995 UNIDROIT Convention - States Parties
Yellow = signature (NOT BOUND)
Burkina Faso, Côte d’Ivoire, France, Georgia, Guinea,
Netherlands, Pakistan, Russian Federation,
Senegal, Switzerland, Zambia
Blue = ratification/accession
Afghanistan, Angola, Argentina, Azerbaijan, Bolivia, Brazil,
Cambodia, China, Colombia, Croatia, Cyprus, Denmark, Ecuador,
El Salvador, FYROM, Finland, Gabon, Greece, Guatemala,
Honduras, Hungary, Iran, Italy, Lithuania, New Zealand, Nigeria,
Norway, Panama, Paraguay, Peru, Portugal, Romania, Slovakia,
Slovenia, Spain and Sweden
Algeria and South Africa are about to deposit the instrument of accession
Syria has taken the decision to accede
1995 Convention & SADC
Angola
Accession
Eff. 01.12.2014
Botswana
Accession
Rep. Dem. Congo
Accession
Lesotho
Accession
Madagascar
Accession
Malawi
Accession
Mauritius
Accession
Mozambique
Accession
Namibia
Accession
Seychelles
Accession
Un. Rep. of Tanzania
Accession
Zambia
Signature in
1995
Ratification
Zimbabwe
Accession
Never
deposited
South Africa
Accession
To be
deposited
Swaziland
Accession
ANGOLA & SOUTH AFRICA
FORMALITIES
FORMALITIES TO CARRY OUT AT THE TIME OF RATIFICATION OR
ACCESSION to the UNIDROIT Convention on Stolen or Illegally
Exported Cultural Objects
 Instrument to deposit with the depositary (Art. 11)
Italian Government (Art. 21(1))
 Compulsory declaration at the time of ratification or accession
Article 16 (1): indicate the procedure(s) under which the claims for the
restitution or the requests for the return of cultural objects may be submitted
according to Article 8.
 Compulsory information no later than six months following the
date of deposit of the instrument of ratification or accession
Article 17: any Contracting State provide the depositary with written
information in one of the official languages of the Convention (English,
French) concerning the legislation regulating the export of its cultural
objects. This information shall be updated from to time as appropriate.
FORMALITIES cont.

Optional declarations at the time of ratification or
accession
Article 3, paragraph 5: any Contracting State may declare that a
claim for the restitution of a cultural object forming an integral part
of an identified monument or archaeological site, or belonging to
a public collection is subject to a time limitation of 75 years or such
longer period as is provided in its law.
Article 13, paragraph 3: in their relations with each other,
Contracting States which are Members of organisations of
economic integration or regional bodies may declare that they
will apply the internal rules of these organisations or bodies and will
not therefore apply as between these States the provisions of this
Convention the scope of application of which coincides with that
of those rules.
Article 14, paragraphs 1 and 2: if a Contracting State has two or
more territorial units, it may declare that this Convention is to
extend to all its territorial units or only to one or more of them
(express declaration). This declaration can also be made at the
time of signature.
Article 16, paragraph 2: any Contracting State may designate the
courts or other authorities competent to order the restitution or
return of cultural objects under the provisions of Chapters II and III.
Draft instrument of accession
Whereas the Unidroit Convention on Stolen or
Illegally Exported Cultural Objects has been open
for signature in Rome on 24th June 1995,
Whereas the Convention according to its Article
11(3) is subject to accession by all States which are
not signatory States as from the date it is open for
signature,
Whereas the XXXXXXXX (Government, Parliament…)
of XXXXXX (name of country) by its decision n°XXXX
acceded to the 1995 Unidroit Convention on Stolen
or Illegally Exported Cultural Objects,
Whereas the instrument of accession, according to
Article 21 of the Convention, shall be deposited with
the Government of the Italian Republic,
Now therefore the Government of XXXXXX (name of
country) formally declares the accession of the said
Convention and undertakes faithfully to perform
and carry out the stipulations therein contained
IN WITNESS THEREOF. I have signed and sealed this
instrument.
Done at
Seal
on
Signature
THE HEAD OF STATE
or
THE PRIME MINISTER
or
THE MINISTER OF
FOREIGN AFFAIRS
OF XXXXXXXX (name
of country)
Draft declaration
Declarations by the Government of XXXXXX (name of country)
made upon deposition of its instrument of accession to the Unidroit Convention on Stolen or Illegally
Exported Cultural Objects, done in Rome on the 24th June 1995,
The Government of XXXXXX (name of country) hereby declares that
in accordance with paragraph 1 of Article 16 of the Convention, claims for the restitution or requests
for the return of cultural objects may be submitted …………….,
in accordance with Article 17 of the Convention, the Government of XXXXXX (name of country)
declares the Ministry of Culture (or Justice, or Foreign Affairs) shall, no later than six month following the
accession to the Convention, present to the Government of the Italian Republic, in one of the official
languages of the Convention, the laws and other statutory acts of the ……… of XXXXXX (name of
country), regulating the export of cultural objects.
Done at ………. this ………….. day of …………20…
Signature
8 May 2015
International Conference
to celebrate the 20th
anniversary
of the Convention
Rome, 8 May 2015
Thank you!
The 1995
Convention
Contact
Ke a leboga
fela thata !
Ms Marina SCHNEIDER
Senior Legal Officer
Tel.: +39 06.69.62.142
Mail: [email protected]