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Unidroit Convention

The arguments for and against Unidroit

Our second Art Law Supplement examines cultural property export regulations; the legal loopholes in their international enforcement and the latest proposed solution: the controversial 1995 Unidroit Convention on Stolen and Illegally Exported Cultural Objects. We also deal with art and artists on the edge of society, in articles on censorship and the creations of the mentally ill

The amount of cultural property being stolen or damaged has increased dramatically all over the world. Stolen cultural property cannot be recovered because of differences in legal systems which provide loopholes for the transit of stolen objects into the licit trade and because of widespread protection of “bona fide” purchasers. Export controls which serve to keep within a country important heritage items are generally not enforced by other countries.

Money cannot replace a stolen cultural object. The Unidroit Convention provides that any cultural object proven to be stolen must be returned. So must an object exported in breach of export controls protecting the most important items of a nation’s cultural heritage. It must be understood that the Unidroit regime treats the two quite distinct legal situations differently.

Some stolen objects are also illegally exported. Other stolen objects are not—a painting which does not come within the Waverley criteria (see UK export laws p.21) may be legally exported whether or not it is stolen. Some illegally exported items are stolen, some are not: an object may have been illegally exported by its owner, for example.

Rules controlling export are separate from the rules regarding theft: all legal systems outlaw theft and punish it, but to date most States have not recognised the export controls of foreign states. However export controls are often used to support claims for cultural objects where it is not easy to prove theft. This might occur when they have been clandestinely excavated and are therefore not inventoried, or when they belong to an indigenous group that has a complex system of ownership.

The US Archaeological Resources Protection Act is an example of an export control being used as a back up to other laws. It makes it a federal offence to trade nationally or internationally any property the subject of an offence against federal or State law. It therefore acts as an export control on all illicitly excavated goods on federal and state lands (some state statutes also apply to privately owned land) and covers, according to the US National Parks and Wildlife Service, offences on almost half of US territory.

Other countries, like the UK, have had historically significant collections, now under threat of loss from the country because the balance of wealth has changed and overseas buyers can offer more than local ones.

Finally, there are countries which have already had serious losses of cultural property when they were unable to exercise control, because of colonialism, conflict or other disaster. They often feel that they must protect everything that is left. In the 1930s the Peruvian cemetery of Paracas was illegally excavated and 961 objects of gold (the entire collection) of the National Museum were stolen. Both thefts (and subsequent illegal exports) were followed shortly after by sales of Peruvian relics in New York and London, described as “property of a gentleman.” Is it surprising that such States are cynical about the ethics of Western buyers and have reacted with broad export restrictions?

It is often argued that export control engenders a black market. While this must be carefully considered, legalising a taking does not solve the cultural problem. Developing a more generous outflow will depend largely on increasing trust. Commitment to the Unidroit convention by “art market” States would be a substantial element in fostering that trust.

There is a general belief that every State has the right to at least an adequate representative collection of its own national cultural heritage. The International Council of Museums (ICOM), for example, speaks of “those objects and documents which are indispensable to people in understanding their origin and culture.”

Increasing international contact has made it all too easy to evade legal controls by exploiting differences between legal systems. Traditionally States did not recognise other States’ export laws, however that position has been changing. International scholarly institutes, German and Swiss national law and the ICOM Code of Ethics have endorsed the respect of foreign laws. This includes export regulations. Similar rules apply under the Unesco Convention 1970 and regional agreements for Central and Eastern Europe, the EU, Latin America and the Commonwealth of 51 States. The Unidroit Convention of 1995 is thus the culmination of thirty years consideration of the problems of illicit trafficking within Unesco, regional organisations and ICOM as well as Unidroit. An important aspect of the Convention is its harmonisation of time limits on claims. Some States have none; others, relatively short periods, and in some there is no delay before the “bona fide” possessor is regarded as owner. This difficult issue was resolved with a complex formula which will allow longer periods for claims than has been the case in some systems, but does not compel any country to recognise the right to bring a claim forever.

A great many intemperate and uninformed statements have been made about the content and intention of the Convention. The first that must be rebutted is that Unidroit is a blank cheque for the enforcement of source countries’ export laws abroad. It is not.

Illegally exported cultural property cannot be recovered under the Convention unless a requesting State proves that its removal impairs the physical preservation of the object or its context, the integrity of a complex object, the preservation of information, the traditional or ritual use of the object by an indigenous community or is of significant cultural importance for the requesting State.

The first four categories were carefully defined to cover objects about which there was comparatively little dispute: hacking out monumental pieces, dismemberment of artworks, loss of provenance by clandestine excavation and disruption of traditional cultures are all cases where there is widespread agreement that the damage must be stopped. The last phrase “or is of significant importance” is more controversial. It was the result of a compromise by a working group set up in the last days of the conference. Its wording is not quite as clear as it might have been had the Drafting Committee had an opportunity to work on it. The preceding wording had been “outstanding importance” and was meant to cover cases such as the panels of Maori sculpture at issue in the Ortiz case in 1983, which did not easily fit into the other categories.

The requesting State will have to bring evidence from cultural experts as to the significance of the object. Such evidence could include elements such as the influence of the piece in art, its uniqueness, the introduction of new techniques or iconography, its religious significance and so on. But it is for the judge in the country holding the contested object to decide whether it is sufficiently important to come within this clause or not and the view of the requesting State is only one element in this decision.

Second, it is unlikely that this provision will be the cause of many requests. In three years since the adoption of the EU Directive concerning the movement of cultural property between its members, not one single case has been brought, despite its applicability to art rich source countries such as France, Greece, Italy and Spain. The problems of proving that the contested object was in the source country at the relevant date are formidable and the cost of legal proceedings in art market countries are strong deterrents to suits except where the evidence is absolutely clear and the value of the object warrants the expense.

Third, compensation is available to purchasers who take basic precautions (see The Art Newspaper, No.63, October 1996, p.31) and dealers can already find the export regulations of foreign states from a handbook published by Unesco. Unidroit also plans to put them on-line. Fourth, contrary to the widely held misconception, the Convention is not retroactive.

Finally, it is argued that the Convention will radically change the rules as to confidentiality between dealer and client. Cultural property is the last valuable asset which can be traded without full disclosure of title and the only one where concealment of provenance is defended. As a consequence it has attracted criminal groups to use it for laundering money.

Unesco, which has major art market member States and others which are the victims of unremitting criminal activity or misfortune (Afghanistan, Bosnia, Cambodia, Croatia, Cyprus) or which are in economic transition, supports the legal trade and States fighting illicit traffic. The Unidroit Convention will significantly limit the transit of illegally trafficked objects into the licit trade without unduly hampering legal transactions.

Dr Lyndel V. Prott

Cultural Heritage Division Unesco

Debate over Unidroit raises profound legal, geopolitical, cultural and moral questions. However, this discussion is more direct and pedestrian: what would Unidroit mean to dealers, museums and collectors on a day to day basis?

First, a huge segment of international trade would be affected by this proposal, not just the antiquities trade. The Convention provides for the enforcement of certain export regulations of source countries in other legal systems, a practice hereto contrary to US and other countries’ legal precedent. There are eleven broad categories under Unidroit that can be included in a nation’s export control scheme and therefore could be recovered abroad. These range from the products of archaeological excavations to “rare collections of species of flora, fauna, minerals and anatomy” to paintings (even modern paintings fifty years after the painter’s death). Virtually anything of the mind that a civilisation produces would qualify for an export control list and thus be barred from the existing, legitimate course of international trade.

It will be an immense burden on dealers, collectors and museums to keep up with the tens of thousands of possibly restricted products, resulting from laws and regulations coming from dozens of countries. The simple understanding of what goods, and which countries, might require an export permit will impose a staggering research obligation on the legitimate trade.

Second, one can look forward to a huge international bureaucracy across the world to administer this program. As a practical matter, no item that appears on an export control list could move internationally without an export permit. At best, this would mean that every participating country would have a new set of export control laws, regulations, forms, stamps, employees, procedures and bureaucrats. At worst, Unidroit would create a black market in false export permits to accompany the transfer of any cultural product.

Third, Unidroit would radically change the long existing trade practices regarding confidentiality of buyers and sellers. Unidroit says it will “encourage purchasers to be more vigilant “ and “to make serious inquiries” into the origin of any goods one purchases. It intends to alter the “present practice of dealers and auction houses of not disclosing names of sellers.”

Fourth, dealers, collectors and museums could find themselves constantly in court ,in expensive proceedings, resisting the efforts of foreign countries to recover work that allegedly left the country without an export permit. Such litigation is time consuming, distracting and ultimately debilitating. Imagine the enthusiasm that a museum or private dealer could muster in going into court to fight a foreign sovereign with an unlimited budget. As an example, it cost almost $200,000 for a dealer that we represented to fight an unjustified claim of Peru to return objects to that country.

In court proceedings mandated by Unidroit, an object purchased without an export permit will be returned when a claiming State can show an interest impaired by the removal of the object, for example most broadly “that the object is of significant cultural importance for the requesting State.” As a practical matter, it is a virtually impossible burden for any private litigant to disprove this if, for example, a Cultural Affairs Minister of a claiming country comes into court to say that an object is of “significant cultural importance” to the State.

One is supposed to take solace in the fact that Unidroit provides compensation for any object that is ordered out of the country. However, in practice the due diligence requirements will be too stringent. Buyers, even in the best of faith, simply are not going to be willing to take on these potential litigation burdens and go forward with the trade.

Finally, although Unidroit states that it is not retroactive, that is no great comfort to the trade. Its adoption could essentially freeze the international market in cultural objects. No object potentially on an export list will be touched by any buyer unless it is accompanied by an export permit. But what about an item on an export list that left a source country decades or centuries before the Convention comes into force? Will anyone take the chance of buying such an object without such a permit, even with some assurance of provenance? I think the answer is clear; it simply will not be worth the risks of immense transactional and legal costs if a source country comes into our courts to claim the object’s return.

In sum, on a practical level, Unidroit is a formula for the radical transformation and serious limitation of the legitimate art trade.

James Fitzpatrick

Attorney, Arnold & Porter

What is Unidroit?

Unidroit (the International Institute for the Unification of Private Law) is a respected Institute founded in 1926 which has been responsible for about seventy studies in private law issues. About forty of these have become international agreements. Most concern trade law. The Unidroit Convention on Stolen and Illegally Exported Cultural Objects 1995 is the culmination of thirty years’ serious consideration not only within Unesco, but also within the European Union, the Council of Europe and the International Council of Museums (ICOM) of the problems of illicit trafficking in cultural property. Although twenty-two States have signed the Convention, it is not until an international agreement is ratified that it is fully operative in international law. The Convention will enter into force when five States have ratified and as yet, no States have ratified. The total list of signatories is: Burkina Faso, Cambodia, Côte d’Ivoire, Croatia, France, Guinea, Hungary, Italy, Lithuania, Zambia, Georgia, Finland, Portugal, Paraguay, Switzerland, Romania, Pakistan, Netherlands, Peru, Bolivia, Senegal and the Russian Federation.

Past agreements

Traditionally States would not enforce other foreign States’ export regulations in their courts. The Institut de Droit International in 1975 and the International Law Association in 1995 recognised that there was no longer a general principle that foreign public laws (which include export controls) should not be applied and that such a principle was inappropriate to modern society. German and Swiss legislation have since specifically permitted courts to apply foreign public law in certain circumstances.

Nonetheless, an international agreement is still generally necessary to reverse the traditional practise of non-enforcement. The first universal international instrument to deal specifically with export controls of cultural property is the Unesco convention of 1970. While it true that the US is the only major “art market” country to become a party to the Convention, a number of other States which have interests both in free trade of cultural objects and in protection of some of their heritage, such as Argentina, Australia and Canada, have become party. It is noteworthy that both Australia and Canada have legislated to return all objects subject to export control of States with the same rules. Thus they already exceed the requirements of the Unidroit Convention.

Following the adoption of the Unesco Convention, ICOM adopted a Code of Ethics which provides that museums will not acquire, identify or otherwise authenticate any object that is suspected to have been illegally acquired, transferred, imported or exported.

Central and Eastern Europe has its own treaty on the subject, the Plovdiv Agreement 1985. Nine States of the Organisation of American States (OAS) are parties to the Convention of San Salvador and six Andean countries to the Andres Bello Convention, both of similar effect.

The Commonwealth of fifty-one English-speaking countries adopted, in Mauritius in 1993, a scheme, based on model legislation, to return illegally exported cultural property.

The European Union adopted the Directive concerning the movement of cultural objects between its members in 1993. (see p.21)

Originally appeared in The Art Newspaper as ‘For and against Unidroit'