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

UNESCO

UNODC

INTERPOL

WCOUNIDROIT

National legislation Bilateral agreement

International conventionCode of ethics

ICOM

and other NGOsCivil society

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

Claims by the owner victim of theft

Interests of trade: protection of 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

Conflict between

the dispossessed owner

and the good faith acquirer

THEFT

Law applicable to claims by the owner

on the day of the claim

on the day when the

object was acquired

on the day when the

object was stolen

Issues of ownership

depend on the

law of the place

where the object

is situated

but at which

moment in time

???

THEFT

No unification of national laws =

uncertainty of the result

THEFT

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

ILLEGAL EXPORT

The starting point – the foundations of a genuine

international law of cultural property and in enunciation of certain values and principles

But with some recognised weaknesses for restitution - it raises a number of important private law

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

1970 UNESCO

Convention

Prevention

Restitution

International

Cooperation

1970 Convention & SADC

AngolaRatification07.11.1991

BotswanaRatification

Rep. Dem. CongoRatification23.09.1974

LesothoRatification17.07.2013

MadagascarRatification21.06.1989

MalawiRatification

MauritiusAcceptance

27.02.1978

MozambiqueRatification

NamibiaRatification

SeychellesRatification28.05.2004

South AfricaAcceptance

18.12.2003

SwazilandAcceptance

30.10.2012

Un. Rep. of TanzaniaRatification02.08.1977

ZambiaRatification21.06.1985

ZimbabweAcceptance

30.05.2006

1995 UNIDROIT

ConventionRestitution

Private law aspects

of the protection of cultural

heritage

1995 Convention & SADC

Angola

AccessionEff. 01.12.2014

BotswanaAccession

Rep. Dem. CongoAccession

LesothoAccession

MadagascarAccession

MalawiAccession

MauritiusAccession

MozambiqueAccession

NamibiaAccession

SeychellesAccession

South Africa

AccessionTo be

deposited

SwazilandAccession

Un. Rep. of TanzaniaAccession

Zambia

Signature in 1995

Ratification

ZimbabweAccession

Never deposited

Careful compatibility and

complementarity between

the 1970 UNESCO and

the 1995 UNIDROIT Conventions

Compromise

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

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

Restitution of

stolen cultural

objects

Return of illegally

exported cultural objects

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... returnany such property … provided that the requesting State shall pay just compensation to an innocent purchaser...

UNESCO 1970

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))

UNIDROIT 1995

The return of illegally exported cultural objects

The Convention contains no specific measuresconcerning the obligation for States to conform toother 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

....

UNESCO 1970

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

UNIDROIT 1995

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

Archaeological objects

Article 9

Any State Party …, whose cultural patrimony is in jeopardy from pillages

of archaeological or ethnologicalmaterials may call upon other States

who are affected (bilateral agreements)

UNESCO 1970

Archaeological objectsSpecific 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

UNIDROIT 1995

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 onState Ownership of Undiscovered Cultural Objects with explanatory guidelines

© R. Velasco Alonso, INAH

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

UNESCO and UNIDROIT

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.

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

UNIDROIT 1995

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)

In determining whether the possessor exercised due care and attention, consideration shall be given to all the circumstances of the acquisition, in particular 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, whether the possessor consulted any accessible registerof 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.

UNIDROIT (Article 4(4))

4) In determining whether the possessor exercised due diligence, regard shall be had to all the circumstances of the acquisition, including

the character of the parties,

the price paid,

whether the possessor consulted any reasonably accessible register of stolen cultural objects,

whether the possessor consulted any other relevant information and documentation which it could reasonably have obtained,

and whether the possessor consulted accessible agencies or took any other 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

AccessionEff. 01.12.2014

BotswanaAccession

Rep. Dem. CongoAccession

LesothoAccession

MadagascarAccession

MalawiAccession

MauritiusAccession

MozambiqueAccession

NamibiaAccession

SeychellesAccession

South Africa

AccessionTo be

deposited

SwazilandAccession

Un. Rep. of TanzaniaAccession

Zambia

Signature in 1995

Ratification

ZimbabweAccession

Never deposited

ANGOLA & SOUTH AFRICA

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

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.

FORMALITIES cont.

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 on

Seal Signature

THE HEAD OF STATE

or

THE PRIME MINISTER

or

THE MINISTER OF

FOREIGN AFFAIRS

OF XXXXXXXX (name

of country)

Draft instrument of accession

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

Draft declaration

8 May 2015

International Conference

to celebrate the 20th

anniversary

of the Convention

Rome, 8 May 2015

The 1995

Convention

Contact

Ms Marina SCHNEIDER

Senior Legal Officer

Tel.: +39 06.69.62.142

Mail: m.schneider@unidroit.org

Thank you!

Ke a leboga

fela thata !