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Doc. 8001

5 February 1998

Unidroit Convention on stolen or illegally exported cultural property

Report

Committee on Culture and Education

Rapporteur: Mrs Margitta Terborg, Germany, Socialist Group

Summary

      The Parliamentary Assembly of the Council of Europe regards the 1995 Unidroit Convention on stolen or illegally exported cultural property as an important contribution to the preservation of the cultural heritage of mankind. By trying to avoid the present easy passage of stolen goods to the licit market it protects owners whose property is stolen. In addition the world-wide scope of the Convention could counter the pillage of cultural property from developing countries.

      The Assembly recommends that the Committee of Ministers call on all member states to adopt the Convention and incorporate it into their national law and calls on the North-South Centre to encourage non-European countries to ratify and implement the Convention.

      It also calls upon its members to work towards ratification of the Unidroit Convention in their own parliaments.

I.        Draft recommendation

1.        The Parliamentary Assembly of the Council of Europe regards the 1995 Unidroit Convention on stolen or illegally exported cultural property as an important contribution to the preservation of the cultural heritage of mankind and fully endorses it. It calls upon the members of the Assembly to work towards ratification of the Convention in their own parliaments.

2.        The Council of Europe has itself addressed the question of the illicit movement of cultural property, notably in the Assembly's Recommendation 1072 (1989) on the international protection of cultural property and the circulation of works of art and in the European Convention on offences relating to cultural property (Delphi, 1985).

3.        The Unidroit Convention aims to provide a substantial benefit for owners whose property is stolen in having the market tightened to try to avoid the present easy passage of stolen goods into the licit market. A significant advance is in the potentially world-wide scope of the Convention and the restrictions this should apply to the pillage of cultural property from developing countries or areas of conflict.

4.        The Unidroit Convention can however only develop its full effect, when the same number of states producing cultural property accede to it as states importing cultural property.

5.        The Unidroit Convention cannot solve many problems which the receipt of cultural object poses. Because the Convention does not apply to cultural objects taken before its entry into force, it will not provide remedies for example for the theft of cultural objects in the former Yugoslavia or Jewish cultural objects transported from the Baltic states into many countries as a result of the Second World War. However, other remedies are already available under the Protocol to the 1954 Convention, the Unesco Convention on illicit traffic of 1970 and by application to the Unesco Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation.

6.        The Unidroit Convention does not deal with criminal law. But while it will not of itself completely solve the problem of international crime rings dealing in cultural property, the effect of the Convention should diminish the profitability, and increase the risks, of criminal activity.

7.       Further international efforts are necessary to go beyond the Convention in protecting - while respecting countries' right to their own heritage - the cultural heritage of humanity and allowing as wide public access to it as possible.

8.        The Assembly recommends that the Committee of Ministers

i.       call on all member states to adopt the Convention and incorporate it into their national law;

ii.       create, through the Council of Europe and the European Union, the material means by which experts of the Unidroit Institute could assist those states seeking advice in transforming the Convention into national law;

iii.       promote an exchange of good practice in the application of the Unidroit Convention especially in the field of customs and police-activities;

iv.       call on the North-South Centre in Lisbon to encourage non-European countries to ratify the Convention and implement it with the help of Unesco and the Unidroit Institute;

v.       invite the states which signed the Convention, to deposit the content of their laws which translated the agreement into the respective national law, in an official language of the Convention at the Unidroit Institute;

vi.       contribute to ensuring that, in addition to the known international courts of arbitration, the states establish an arbitration commission at the Unidroit Institute that can be called upon by the States Parties to assist in the event of disagreements concerning the interpretation of the text of the Convention;

vii.       promote the results of the Conference organised by the Paul Getty Institute in Amsterdam in May 1997 on the identification, origin, legal acquisition, transport and ownership of cultural property and to solve other outstanding problems as soon as possible;

viii.       ask member governments to take steps to ensure that special attention is devoted to combatting international crime rings in the area of cultural property and prepare the way for setting up special international police units.

II.       Explanatory memorandum by Mrs Terborg

A.        Past history

1.        The question of how the theft and pillaging of cultural property, as well as its illegal transport into other countries should be fought with international law has occupied the international community for decades. Examples of this are The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (May 1954), the Unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970), the Convention for the Protection of the World Cultural and National Heritage (1972), Article 36 of the EEC-Treaty (1957), and the Directive of the European Union (15 March 1993).

2.        The resolutions and recommendations of the Council of Europe regarding this question have also been numerous. Among them are the European Convention on the Protection of the Archaeological Heritage (1969), Assembly Recommendation 681 and Resolution 532 on the protection of Europe's architectural heritage (1972), Recommendation 742 and Resolution 579 on future measures by the Council of Europe (1974), the Convention from Delphi on the international protection of cultural property (1983), the European Convention for the Protection of the Architectural Heritage of Europe (1985), Assembly Recommendation 1072 (1989) on the international protection of cultural property and the circulation of works of art, and Recommendation 1172 on the situation of cultural heritage in Central and Eastern Europe (1992).

3.        This list, which is in no way complete, shows that although legal frameworks, directives and resolutions have been formulated for a series of individual cases, a comprehensive world wide Convention for the protection of cultural property is still not forthcoming. Therefore, in 1984, Unesco appointed a commission of legal experts from Unidroit to prepare a Convention which would complement the existing Unesco Convention of 1970 in the area of private law regarding the illegal traffic of cultural property.

4.        In a series of meetings the experts worked on a draft Convention which was approved by a majority at the Diplomatic Conference of Rome on 24 June 1994 (34 countries for, 5 against and 17 abstentions).

5.        From the beginning, the Parliamentary Assembly of the Council of Europe has followed and supported these endeavours with sympathy. In 1995 Dutch representative, Josephine Verspaget, and others tabled a motion which welcomed the Unidroit Convention, at that time only in draft form, and requested that the Committee for Culture and Education organise an international seminar and thereby help create the conditions needed to pass the Convention (Doc. 7252). The rapporteur was appointed to observe the results from the conference in Rome and realisation of the Convention in the member states and to prepare a report on it. The present report should correspond to these tasks.

B.        The state of ratification of the Unidroit Convention

6.        Italy is the depository state of the Convention. Countries could sign the treaty up until the end of June 1996. Twenty-two states did so. They are ( in alphabetical order): Bolivia, Burkina Faso, Cambodia, Côte d’Ivoire (Ivory Coast), Croatia, Finland, France, Georgia, Guinea, Hungary, Italy, Lithuania, the Netherlands, Pakistan, Paraguay, Peru, Portugal, Romania, the Russian Federation, Senegal, Switzerland and Zambia.

7.        Lithuania, the People’s Republic of China and Paraguay have since ratified the Unidroit Convention.Two other states, Brazil and Argentina, are expected to ratify shortly.

8.        The Unidroit Convention comes into effect if at least five countries have ratified the treaty. The Convention can only be accepted in whole. A major aim of the Unidroit negotiations was to establish minimal rules of uniform law.

C.        What the Unidroit Convention does and what its limits are

9.        The Unidroit Convention on the International Return of Stolen or Illegally Exported Cultural Property applies to all states which accede to this treaty. It comes into effect six months after the fifth deposit of an instrument of ratification, accession or acceptance (Art. 12.1). For states acceding after that date it comes into effect 6 months after the date of deposit of the instrument. A claim for the restitution of a cultural object must be made within a period of three years from the date in which the current location and present possessor of the object is known. If a cultural object has been stolen, it must be claimed within fifty years from the time of the theft. For cultural objects that are a component of an identified monument, archaeological site or public collection, the statute of limitations begins within three years from the time at which the current location of the object and the identity of the current possessor is known. In accordance with their own national laws, each state belonging to the treaty can prolong the statutory period of limitation for cultural objects which originated from an identified archaeological site, public collection, etc. This must, however, be declared at the time of accession to the Convention and can apply only to claims made within the state in question.

10.        When assessing the Convention, one must take into account the fact that it does not apply to cultural objects taken before entry into force. Thus, war booty does not fall under the competence of this Convention. Neither do Yiddish cultural objects, for whose restitution some Baltic states have made efforts. Most importantly: the Convention cannot help citizens of a contracting state, who are entitled to make a claim, when the cultural object is found in a country which has not acceded to the treaty. Other remedies are already available under the Protocol to the 1954 Convention, the Unesco Convention on illicit traffic of 1970 and by application to the Unesco Intergovernmental Committee for Promoting Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation

11.        According to Article 2 of the Convention, a cultural object is any object of archaeology, prehistory, history, literature, art, science or religion which belongs to an area listed in a wide-ranging annex to the agreement and is regarded as cultural property by the contracting state making a claim. Opinions are already divided over this definition alone. One side finds the definition logical, the other too extensive. Especially criticised is the fact that the state of location can determine for itself what it regards as a cultural object. Opponents of the Convention argue that this definition is arbitrary and that a definition valid for all states should have been established.

12.        The long statutory periods of limitation found in Article 3 and Article 5 are considered by many as progressive, but they discourage a number of states from acceding to the agreement and, thereby, have a counterproductive effect.

13.        The problem of due diligence when acquiring a disputed cultural object and the question of compensation at the time of its return, addressed in Article 4, are no less controversial. The Convention stipulates that the acquirer exercises due diligence in ascertaining that an object has not been stolen. This can be determined from the character of the party selling the object or the price paid. In addition, the acquirer can check a register of stolen cultural objects, or collect other relevant information, as well as examine documentation or ask the appropriate organisations for information. This is unacceptable for the purchaser, the critics say. The catalogue makes for extensive reading. The advocates of the Convention say that this question will certainly be handled judiciously by the courts: similar tests of good faith are already in use. Also criticised is the too generally formulated stipulation for compensation for the acquire in good faith, which exposes the purchaser of cultural objects to unacceptable risks. Supporters of the Convention argue that here too one can also count on reasonable decisions from the courts, which will give equal consideration to the interests of the acquire in good faith and the financial situation of the state insisting on restitution of the cultural object. The problem is that at present an owner may see cultural objects sold at auction in his own country two years after their theft from him without any legal remedy being open to him.

14.        Article 8 involves a question which is interesting not only to lawyers: it states that a petition for the return of cultural property must be accepted by the authorities or courts of the contracting state where the cultural good is found. The parties could also agree to have the matter decided in another court or a court of arbitration. This is a clear provision, say some. Others criticise it as yet another opportunity for contracting states to create conditions favourable to themselves by using the law.

15.        Finally, the stipulation that the Unidroit Convention can only be adopted in whole is regarded by many as impeding the Convention from making the most far-reaching global effect possible. Others argue that only the full Convention, with all its conditions applying, guarantees that it cannot be circumvented by dealers.

D.        The positions of selected states in detail

16.        Here it is necessary to make a preliminary remark: a number of European states are not listed because they did not want to make a statement at this stage, were not prepared to answer by telephone or fax or declared they would only make a statement to the Committee of Ministers. A random selection of non-European states has also been included as the importance of the Convention depends considerably on its global impact.

17.        In all probability, Italy will ratify the agreement in the coming year. At the end of June 1997, the Senate will consider a bill on the matter from the government. It is reckoned - the Chamber of Representatives included - that the deliberations will last eight to ten months. The government is in favour of the Unidroit Convention. That is understandable, because Italy suffers greatly from archaeological plundering and the illegal export of cultural property. Losses in the last decade alone are estimated by a special department of the Italian police at 20, 000 stolen cultural objects (per year!). Trade in such cultural property is used more and more often for laundering money illegally. The proof of acquirement in good faith is not seen as the pre-eminent problem; the burden of proof on the victims to provide evidence is more difficult. The Italian museums salute the Convention without exception and regard it as practicable.

18.        According to our current information, the Federal Republic of Germany will not ratify the Unidroit Convention. The Federal Government is acting in agreement with the Federal States, which are vested with sovereignty in cultural affairs. The main arguments include the following: if the Convention were limited to Chapter II alone (Restitution of Stolen Cultural Objects), there would be no problem in acceding to the agreement. Insurmountable problems are caused by Chapter III (Return of Illegally Exported Cultural Objects). In the past centuries, Germany itself has had to accept significant losses of national cultural property. Nevertheless, no intention exists to change the current export regulations, which have been liberal up until this point. Understanding exists for states' interests in the whereabouts of essential objects of national cultural heritage. The Convention, however, far overshoots its goal. Despite many efforts, the provisions in Chapter III have remained ambiguous. Also left ambiguous are the questions of the provision for compensation, distribution of the burden of proof of acquisition in good faith, the long statutory periods of limitation, the provisions on venue and the freedom of the state of location to determine autonomously what it defines as a cultural good worthy of protection. Germany fears that as time increasingly lapses after ratification of the Convention, it will become more and more difficult to produce proof of due diligence at the time of the acquirement in good faith, and that the trade in art and antiquities will be badly impaired by this agreement.

19.        France has recently ratified the Unesco Convention of 1970. That is regarded as an encouraging sign that France will also accede to the Unidroit Convention. Of course, sceptics draw attention to the fact that the process could still last a number of years. Because of the recent elections to the National Assembly, a reliable prognoses could not be obtained from the government.

20.        The Netherlands has signed the Convention, but consultations are continuing. The country would have liked a different agreement to have been reached from that which is embodied in the text of the Convention from Rome. It has been said to have been a political compromise. A time frame for the proceedings for ratification has not yet been decided.

21.        Finland has set up a working group for the examination of the text of the Convention. It is estimated that its deliberations will wind down this autumn. The government wants to make a decision before the end of this year. How the ratification process will proceed is still completely open.

22.        Austria did not sign the Unidroit Convention, and has no intention to ratify it. The main objection is against the provisions indicated in Chapter III which address the problem of illegally exported cultural property. The interpretation of what is illegally exported is too varied from country to country and it is left to the judge of the country of location.

23.        Switzerland began very early to create the political conditions for ratification of the agreement. In consultations different viewpoints were discussed and a wide approval resulted. The public discussion was significantly shaped by the fact that Switzerland does not want to become a hub for the art trade in stolen or illegally exported cultural property. Since the consultations , the art trade has set up a front against ratification. It remains to be seen how much it can influence the political decision.

24.        Lithuania was the first state to approve the treaty in parliament and to deposit the official instrument of ratification in Rome.

25.        The United Kingdom regards the goals of the Convention as "laudable" but rejects ratification. The main problems are the definition of cultural objects according to the treaty and the statutory periods of limitation. These time limits, joined with the burden of proof of requisite diligence at the time of the acquirement in good faith of a cultural object, create too much uncertainty and disturb the balance between the interests of the owner of a cultural object and the acquire in good faith. If it were possible to ratify the Unidroit Convention in part, the United Kingdom (in contrast to Germany and other industrial countries) would acquiesce to Chapter III (because it corresponds to the EU Directive which has already been converted into national laws by the UK) and reject Chapter II. It remains to be seen if the new government has a different opinion.

26.        Denmark has misgivings as well. No problem exists with the restitution of stolen cultural objects, but rather with cultural property taken illegally out of the country which falls under Chapter III of the Convention.

27.        In Greece reluctance on acceding to the Unidroit Convention appears to be prevailing. The agreement is regarded as insufficient and the lack of retroactive effect is especially criticised.

28.        The Russian Federation signed the Convention. They hope they can begin the process for ratification at the end of this year, or, at the latest, at the beginning of 1998. Legal problems were not foreseen, but it is expected that to fulfil the prerequisites for ratification, some national laws will have to be changed to accommodate the stipulations within the Convention.

29.        In Hungary, the Government is currently examining the text of the agreement and its transformation into national law. For example, Hungary has no statutory periods of limitation for stolen or illegally exported cultural objects. At the same time as a national bill for the protection of cultural property, the Convention will be dealt with in the parliament this year. One can assume that a positive decision will be reached by the parliament.

30.        In principle, Poland regards the agreement positively. The consequences of an accession to the Unidroit Convention are currently being considered. There is no firm time-table for the procedure for ratification.

31.        The Vatican is currently working on new legislation for its cultural objects. The Edict from Cardinal Pacco, drafted in 1828 - a model for a series of laws in other countries - should be modernised. It can be estimated that the Vatican will approve the Convention in a few years. As all the cultural property belonging to the church-state is catalogued, an identification certificate for cultural objects would pose no difficulties.

32.        Within the European Union no need for action is seen. An EU Directive (based on an early draft of the Unidroit Convention) already forbids the illegal export of cultural objects. This directive has not yet been translated into national laws in Luxembourg, Austria, Italy, Greece and the Federal Republic of Germany. The EU does not occupy itself with the question of stolen cultural property. The general policy of the EU remains to protect the cultural heritage of humanity. It was pointed out informally that the definition of cultural property in the Unidroit Convention is too wide, and that it goes too far in the question of protection of national heritage. On the other hand since the adoption of the EU Directive, not one case has been brought in any European country

33.        In Brazil the treaty has already been presented in parliament. The accession to the Unidroit Convention should occur within the year.

34.        Argentina began the parliamentary deliberations on the Unidroit Convention in May. Approval is expected.

35.        The government of Canada is studying the Unidroit Convention. A decision is not to be expected in the near future. No time frame exists for an accession to the agreement.

36.        The USA will wait and see if a group of European countries which have art markets as large as in the United States, ratifies the Unidroit Convention. Especially due to the history of the Unesco Convention of 1970, this caution is pragmatic rather than political. The Unesco Convention was ratified by the USA and an additional 70 or 80 countries, but it could not dry up the illegal art market because other countries with large art markets did not accede to the Convention. In the USA, the main objections are also directed towards Chapter III. It would affect the American legal status, because the United States do not have export restrictions for cultural objects (with the exception of stolen objects and illegally excavated antiquities). In addition, resistance is active among art collectors, art traders, and a few museums, whose lobbies create a barrage against Unidroit.

37.        The government of the Peoples Republic of China deposited its official instrument of accession in Rome on 12 May 1997.

38.        Japan is not preparing to ratify the Unidroit Convention. The definition of cultural property is disturbing (Japan believes that the countries should determine beforehand which cultural objects are to be protected), as is the insufficient protection for the acquires in good faith (they are threatened with long statutory periods of limitation). It is predicted that the Convention will become a plaything in the game between the countries producing cultural objects and the states importing cultural property. The Convention, it is lamented, appears to favour countries producing cultural objects.

39.        The Unidroit-Institute in Rome judges the present handling of the Convention in individual countries positively. Unidroit reckons that within this year at least five states will have ratified; and, with that, the agreement can come into effect. It would be desirable if the countries acceding to the agreement would deposit the content of their laws, which transformed the Convention into national law, in the official languages of the Convention. It should be considered whether, in the occurrence of differences in interpretation of the Unidroit Convention, a commission of arbitration, which would be housed at the institute, could be called upon.

E.        Conclusions

40.        There is no doubt that the Unidroit Convention can make a positive contribution to the preservation of the world's cultural heritage. It standardises private law in the area of stolen or illegally exported cultural property and can thus prove to be an effective weapon against theft from museums and churches, theft from excavations or the breaking up of important collections.

41.        All investigations conducted by the rapporteur, revealed that, as a rule, the Unidroit Convention is greeted much more positively by countries producing cultural objects than by the states importing cultural objects. In some countries the art trade may have been more effective in getting its view across to the governments that signed the Convention than archaeologists, ethnologists and museum directors. It is overlooked that countries that constitute a market could also gain more security for owners and better co-operation in locating stolen property. At the present time, a wide endorsement of the agreement cannot yet be assumed. The more limited the circle of contracting states is, the smaller the effects of the treaty will be. This could be even more aggravated by the possibility that a majority of states producing cultural objects will accept the Convention, but only a minority of the countries importing cultural objects will do the same.

42.        There is a real danger that the ratification process will again be drawn out over decades. Because of this, the trade in stolen and illegally exported cultural objects will be only marginally impaired during this period. Each year the cultural heritage of the world will suffer additional and immeasurable harm.

43.        In view of such an unfortunate realistic perspective, the Parliamentary Assembly of the Council of Europe, which so often devotes itself to the preservation of cultural property and the fight against theft and illegal trade of these objects, cannot allow itself to be resigned to this fact.

44.        The members of the Parliamentary Assembly should exercise pressure in their national parliaments, so that both legitimate and unfounded misgivings against ratification of the agreement can be debated and dispelled. The Committee of Ministers should arrange for governments to report regularly on why they have not acceded to the Convention or have not yet done so.

45.        The Parliamentary Assembly should look for ways, to ensure that the individual countries, if they do not ratify the Unidroit Convention, at least adopt the essential parts of the Convention into their respective national laws.

46.        The Assembly should indicate possibilities of settling disputes concerning the interpretation of the text of the Convention, such as recourse to the Permanent Court of Arbitration in The Hague or the arbitration system of the International Chamber of Commerce in Paris, or even an arbitration commission to be set up at the Unidroit Institute in Rome.

47.        The Assembly should suggest that the Council of Europe and the European Union make funds available, so that experts, again based at Unidroit, can be active in advising interested states on the transformation of the agreement into national law.

48.        The Assembly should not restrict its efforts to the Unidroit Convention alone. This Convention only tackled the standardisation of private law in the field of cultural property. It does not address the comprehensive protection of the cultural heritage of humanity. Further international efforts are necessary to attain this goal.

49.        Additional questions such as, the problem of the preservation and the bringing together of Jewish cultural objects stolen from the East European countries, require additional efforts which extend beyond the scope of Unidroit.

50.        Disputed claims of ownership- in the area of war booty, for example, but not only limited to this area- will become pronounced, and should not be allowed to lead to the withholding of cultural objects which are essential to all mankind. Without prejudice to the stipulations in Article 5 Paragraph 2 of the agreement, it should be examined whether the legal institution of safe conduct might lead to the exhibition of disputed cultural objects outside of the boarders of the countries in which they are found without the task of solving the respective claims of ownership.

51.        A further means to impede art theft, the pillaging of archaeological sites and the illegal trade in cultural objects would be the possibility of providing such goods with an international identification certificate, in which the origin, legal acquisition, legal transport and different ownership are documented. The Parliamentary Assembly should call upon the Committee of Ministers to pursue further the studies carried out by Unesco on export certificates and an international identification certificate.

52.        Concern is caused by the fact that international organised crime is more and more concentrated in the area of trade with stolen and illegally exported cultural objects. This sector in particular is used for laundering money illegally. International co-operation between special departments of the police authorities of individual states has proved successful with regard to combating art theft and should be strengthened.

Reporting committee: Committee on Culture and Education

Budgetary implications for the Assembly: None.

Reference to the committee: Doc. 7252 and Ref. No 2034 of 25 September 1995.

Draft recommendation: adopted by 18 votes, 2 against and 0 abstention on 14 November 1997.

Members of the committee: Lord Russell-Johnston (Chairperson), Mr Probst, Mrs Verspaget (Vice-Chairpersons), Arzilli, Arnason, Bartumeu Cassany, Bauer, Baumel, Mrs Camilleri, MM. Corrao, De Decker (Alternate: Staes), Diaz de Mera, Domljan, Dumitrescu, Mrs Fehr, Mrs Fleeetwood, Mrs Fyfe (Alternate: Mr Wilshire), Mrs Garajova (Alternate: Knazko), MM. Gellért Kis, Glotov, Mrs Groenver, Mr Hadjidemetriou, Mrs Isohookana-Asunmaa, MM. Ivanov, Jakic, Jarab, Mrs Katseli, MM. Koucky, Kriedner, Lazarescu, Legendre, Lemoine, Liiv, Malachowski, Mrs Maximus, MM. Mutman, O’Hara, Pereira Marques, Polydoras, Mrs Poptodorova, MM. de Puig, Ragno (Alternate: Gnaga), Regenwetter, Roseta, Mrs Rugate, Mrs Saele, Mrs Schicker, Mr Siwiec (Alternate: Urbanczyk), Mrs Stefani, MM. Sudarenkov, Symonenko, Szakàl, Tanik, Mrs Terborg, MM. Vangelov, Verbeek, Mrs Vermot-Mangold, Mr Walsh (Alternate: Connolly), Ms Wärnersson, MM. Yavorivsky, Zingeris.

NB: The names of those who took part in the vote are in italic.

Secretaries to the committee: Mr Ary, Ms Theophilova and Ms Kostenko.