The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects
– an overview –
Why a new Convention?
When it comes to international claims in respect of cultural objects, the common law offers no satisfactory solutions, and the existing Convention texts either do not cover, or do so only in part, the private law aspects of cultural property protection (one of the chief obstacles to the international recognition by some States of rules in this area being the protection of the good faith buyer). UNESCO therefore asked UNIDROIT to draft a new instrument that would take its cue from the 1970 UNESCO Convention but would also incorporate 25 years of reflection on the subject of illicit trafficking (following an upsurge of this threat worldwide, States were just beginning to re-thing their positions on this subject and becoming more willing to co-operate in this field).
The 1970 UNESCO Convention and the 1995 UNIDROIT Convention
The UNIDROIT Convention underpins the provisions of the 1970 UNESCO Convention, supplementing them by formulating minimal legal rules on the restitution and return of cultural objects. It guarantees the rules of private international law and international procedure which make it possible to apply the principles set down in the UNESCO Convention. The two Conventions are at once compatible and complementary.
The 1995 UNIDROIT Convention
As soon as negotiations got underway, two more or less homogeneous camps confronted one another. One grouped supporters of the free movement of cultural objects worldwide, while the other campaigned for national protection of the cultural heritage. The former group were intent on limiting the future Convention’s scope of application to the utmost and on safeguarding the protection afforded to the good faith buyer within their jurisdictions. Their opponents on the contrary wished to extend the principle of restitution of stolen or illegally exported cultural objects as far as possible, thereby ensuring optimal protection of the national cultural heritage on the international stage. It took six years of negotiating to bring these antagonistic views closer together and to produce a Convention that was adopted at a diplomatic Conference held in Rome on 24 June 1995 and attended by over 70 States. The Convention entered into force on 1 July 1998.
When a museum has reason to believe that a cultural object has been illegally exported from its country of origin, it is prevented from buying it by the ICOM Code of ethics. If the object in question is bought on the international art market by a person or institution acting in good faith, the country of origin presently has no option but to buy it back. While some countries can afford to do so, many others do not have so much money to spend on buying back rare objects belonging to their national cultural heritage. Now, however, with the advent of the UNIDROIT Convention, a dispossessed person or institution or State of origin can claim the object in accordance with procedures that differ depending on whether the object was stolen or illegally exported.
The real purpose of the Convention is not to enable or trigger a certain number of restitutions or returns (of which perforce there will be relatively few) through the courts or by private agreement, but to reduce illicit trafficking by gradually, but profoundly, changing the conduct of the actors in the art market and of all buyers.
If a cultural object has been stolen, it must be returned – restitution is an absolute duty unless the limitation period has expired. The only question that arises is whether compensation must be paid.
Probably the most important provision in the entire Convention is its Article 3(1), which enshrines the principle that the possessor of a cultural object that has been stolen must return it whatever the circumstances. Rather than a moral judgment or choice between the two systems, which would imply penalizing either the original owner or the good faith buyer since they cannot both be given equal protection, a pragmatic solution was worked out: which rule was most likely to curb illicit trafficking? The answer was to compel the buyer, on pains of having to return the object, to check that the object was being lawfully traded. This principle, coupled with the possibility of compensation for the buyer who can prove that he acted “with due diligence” (Article 4(1)), constitutes one of the most important legal rules in the fight against illicit trafficking in cultural objects. Its effect on the art market, which has tended to be reluctant to reveal the origin of cultural objects and where buyers are not unduly curious, will be immediate.
Indeed, it is of prime importance to strike at one of the key links in the chain of international traffickers in cultural objects by taking a fresh look at the problem of how to protect the good faith buyer in the light of the principles governing the protection of the cultural heritage. This Convention will, when it will gain wide acceptance, make it possible to shift the responsibility onto the only person likely to be caught: the final purchaser, who so far has been able to hide behind the diversity and incoherence of existing legal systems in order to appropriate stolen objects or objects the illegal origin of which he is bound to suspect. The underlying principle holds since the sums involved and the special nature of the objects in question can leave no doubt that the so-called good faith buyer must have experience. Moreover, to be effective any method adopted must needs recognise the principle that supply is inexorably linked to demand, and that as in the case of drugs, lasting results can only be obtained by cracking down on illicit trafficking.
The exporting countries’ argument that a dispossessed owner is not always in a financial position to pay compensation to the good faith buyer and may therefore not be able to get the object back anyway, may be countered by recalling that the Convention refers to “fair” compensation, not to reimbursement of the sum paid, and that the criteria of “due diligence” are such (Article 4(4)) that it will always be more difficult for owners to prove that they acted with due diligence and are therefore entitled to compensation.
The return of an object after it has been illegally exported is, for its part, subject to one condition, i.e. it must be shown significantly to impair the preservation of scientific information or that the cultural object in question is “of significant cultural importance”. Requests for its return may only be made by the State whence the object was illegally exported – the Convention considers an object that was removed under a temporary export permit for an exhibition and not returned in accordance with the terms thereof as having been illegally exported.
The 1970 Convention was the first serious attempt at international level to address this problem, but the duty on States Parties to ensure the return of illegally exported cultural objects to their countries of origin was severely restricted by its Article 7. The UNIDROIT Convention is going go much further in securing the return of cultural objects to their countries of origin in many more cases.
Since it proved well-nigh impossible to agree on export bans that would be both recognised and applied, the drafters of the Convention ultimately opted for a series of interests that all States agreed should be protected (Article 5(3)). The Convention does not recognise national export bans issued on political or economic grounds, and requires evidence of a significant impairment of chiefly cultural, but also scientific or historical interests. It should be recalled that the list provided is not exhaustive, since each Contracting State is free to apply more favourable rules to the return of an illegally exported cultural objected than those provided by the Convention (cf. Article 9) and indeed to take into account other interests than those listed in Article 5.
Where stolen or illegally exported cultural objects are transmitted by way of inheritance or succession, the beneficiary has the same duties as a good faith possessor who acquired the object by transfer. This is important, in particular in museum practice, where it is quite common for private persons to make donations or bequests to museums or similar institutions of objects the origin of which may be doubtful.
Another type of cultural object covered by the UNIDROIT Convention that must be mentioned is the products of archaeological excavations, which are only covered by the 1970 Convention to the extent of the interpretation given by some States to its Article 9. The UNIDROIT Convention for its part contemplates the possibility of an action being brought on the basis of its provisions in respect either of theft or of illegal export: an object is considered stolen “when consistent with the law of the State where the excavation took place” (Article 3(2)) or when subparagraphs (a), (b) or (c) of Article 5(3) apply, which refer to the objects from archaeological sites. The type of proceeding chosen will depend on how difficult it is to adduce proof (is the object a product of excavation or has it been illegally exported?).
Other rules laid down in the Convention show how the compromise which it embodies accommodates different legitimate concerns. On the one hand, there is the matter of legal security for market operators, and for public and private collections. This need is met by requiring payment of compensation where due and by the clarity of the non-retroactivity clause (Article 10). The drafters of the Convention opted for a solution resting on the general principle (Article 10(1) and (2)) which states that the Convention will apply solely to cultural objects stolen after the Convention entered into force in respect of the State where the request was brought, as well as to objects illegally exported after the entry into force of the Convention in respect of the requesting State and of the State where the request was brought. However, paragraph 3 specifies that the Contention “does not in any way legitimise any illegal transaction of whatever which has taken place before the entry into force of this Convention” and does not “limit any right of a State or other person to make a claim under remedies available outside the framework” of the Convention.
The need for legal security is likewise met by the provision of a relatively short limitation period. The time limitation is three years from the time when the claimant knew the location of the cultural object and the identity of its possessor (and this applies also to public and suchlike collections that may have no limitation period attached).
On the other hand, the text takes into account the material and moral interests of “exporting” States and, more generally, those of public collections (defined by Article 3(7) for the purposes of the Convention), religious and cultural institutions, and the protection of the archaeological heritage and historic monuments; it does so by creating a group of cultural objects subject to a very long time limitation (75 years) and, in some cases, no time limitation at all. That same special regime extends to sacred objects or objects of significant cultural importance for indigenous communities. These provisions translate a concern for a more balanced dialogue of cultures.
Finally, the “reasonable efforts” referred to in Article 4(2) to ensure that it is the person(s) responsible for the illegal trafficking who pays compensation rather than the owners or the requesting States also evidence a concern for the interests of the exporting States.
The text of the UNIDROIT Convention is the outcome of a compromise, and as with all compromises, it does not completely satisfy all of everyone’s needs. However, a closer look at the Convention shows that none of the parties concerned by the Convention suffers unfairly. The Convention is evidence of the very real efforts made by legal scholars to marry justice to realism and to try, to the extent possible, to establish a foundation to build on in the years to come. Experience has shown, however, that it is one thing to adopt an international Convention, and quite another to guarantee its effective application. Now, therefore, is the time to address the legitimate concerns expressed by some – yet it would be a great pity if the effort made were not understood as such by those interested in the cultural heritage or otherwise involved in the preservation and protection of cultural objects.