How far have we come, just as yet?
While the 1954 and the 1970 Conventions (you can read Part I addressing the two instruments here) brought a legal innovation in the sense that they provided the first comprehensive regimes towards the protection of cultural property, including the introduction of mechanisms concerning the illicit trade in art and antiquities which is the main theme of this two-partite article, they missed some key issues. The 1995 UNIDROIT Convention was introduced to address those issues, although this instrument, however well-intended, faced many challenges even from the early days of its drafting that, inevitably, surfaced in the years after its enforcement.
As the times are constantly changing, whilst the technological advancements of our era are aiding both the smuggler and the innocent/aggrieved party, the need for a modernised framework had been deemed more necessary than ever. To address that a new instrument - the 2017 Nicosia Convention - was introduced. Part II provides a brief overview of the two legal frameworks mentioned above, followed by some thoughts and observations from the author.
The 1995 UNIDROIT Rome Convention
The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects is essentially a supplement to the 1970 Paris Convention (Part I), and UNESCO contributed significantly to its drafting. [1] By requesting UNIDROIT (with expertise in private law) to step in, UNESCO sought to address the loopholes of their earlier Convention and to ensure its smooth continuation in the 1995 instrument. [2] The aim was to encourage its contracting parties to get involved and implement the new UNIDROIT Convention once enforced. [3] The decision to supplement the 1970 instrument was owed to the ‘tidal wave of theft’ that affected both market and source states in the years that followed. This affirmed the allegations over the inefficacy of the Paris Convention in providing an all-embracing regime. [4]
The mission was to create a private international law instrument to facilitate the restitution of stolen private (non-designated/non-registered by any state) artefacts directly through the claims of private individuals without the involvement of any state as an intermediary. [5] Therefore, the 1995 Convention facilitates private individuals and states with the right to resort to court or tribunal proceedings in the state/territory where the stolen object(s) is/are traced to raise a claim for repatriation, provided that they act within the set time limitations of the Convention. [6]
UNIDROIT in this regard requires the ‘possessor of a [stolen] cultural object…to return it’, [7] whilst expanding the scope of the objects that can be returned when compared to the earlier UNESCO regime. This is affirmed by Art. 5(3) which provides grounds (at least one of them must be met) upon which a state can successfully plead to establish the repatriation of unlawfully exported (including clandestine excavated) artefacts. [8] The 1995 Convention, particularly accommodates this end because it inscribes that ‘a cultural object which has been unlawfully excavated or lawfully excavated but unlawfully retained shall be considered stolen’. [9]
Additionally, the Convention addressed the issue of bona fide possessors by introducing provisions that good faith possessors must return the artefacts they purchased upon discovering that they were stolen, provided the owner raised the claim within the set time limits. [10] Furthermore, a positive obligation is imposed on bona fide possessors to show that they did not knowingly engage in a bargain involving stolen artefacts/artworks to be able to receive compensation. [11] Indeed, many countries, particularly common law jurisdictions, do not perceive a good faith possessor as the legal owner, whilst their legal systems do not even materialise compensation towards the innocent possessor. [12] At this point, one can see the humble attempt of the drafters to reach a middle ground and bridge the differences in terms of legal culture that exist between common law and civil law countries. However, this has been largely unsuccessful as the leading market states are still reluctant to adopt the 1995 instrument.
Furthermore, emphasis must be added in that the Convention expressly provides that it sets minimum standards for international cooperation to tackle art smuggling. [13] This means that it gives flexibility to its contracting parties to retain or enact more advanced national laws in their mission to tackle the illicit trade in artefacts to facilitate justice for those deprived of it. [14] As one can see, although this instrument has brought an innovation in the sense that it attempted to unify private international law rules, it was nevertheless met by the reluctance of key market states. Regardless of the fact that the instrument sets minimum standards, it is evident that most market states are reluctant to abandon or update their laws, and as a result a disparity of conflicting laws still persists in disputes of international character.
The 2017 ‘Bloody Antiquities’ Nicosia Convention
The Council of Europe cognisant of the difficulty to successfully address the loss and smuggling of artefacts globally, along with the difficulty to overcome the obstacle of state sovereignty to achieve better cooperation, seeks through this instrument to present a holistic approach in the mission to tackle these issues, whilst considering the involvement of ‘transnational terrorism’ in the field. [15] The Convention on Offences relating to Cultural Property is a mechanism ‘designed to protect cultural property’ irrespective of state implementation/accession, whilst calling for collective governmental/intergovernmental engagements to combat these issues. [16]
The ambition of this instrument is to act as a complementary mechanism to address the loopholes of earlier instruments, facilitating international cooperation in ‘investigating/prosecuting/sentencing’ those liable, particularly, through the employment of ‘common criminal regulations’ nationally and internationally. [17] The scope of this Convention encompasses all items classified as artefacts, regardless of their location in public or private hands. It even covers objects buried in archaeological locations, while the instrument’s innovation is ascribed by its openness to cover objects designated by other international instruments (e.g. the 1970 UNESCO Convention). [18]
Arts 3-16 overall introduce criminal regulations whilst designating a catalogue of offences. [19] Arts 3-9 address the ‘trafficking in cultural property’ and require the contracting states to implement these provisions in domestic legislation. Arts 3-4 criminalise acts of theft and other interferences with cultural property (including immovable property: e.g. ‘unlawful excavation or removal’ of artefacts from archaeological/cultural property/heritage sites etc.), even the possession of such items ‘without legal (official) authorisation’. [20] The instrument aims to draw a line between authorising someone to conduct excavations from the manner in which they may elect to act, and the effects of their conduct. [21] Arts 5-6 criminalise the illegal import/export of stolen/illicitly excavated/removed cultural property where the domestic laws of the states in question designate so. [22]
Art. 7 clarifies that ownership over ‘stolen, [illicitly] excavated [but wrongfully] removed/imported/ exported’ artefacts cannot pass, while Art. 8 renders an offence the ‘placing’ of…[ such illicitly acquired objects] on the market’ (any act of ‘supplying,…offering for sale’ in all layers of the market including the ‘black market’). [23] Additionally, Art. 9 makes the falsification of such objects’ documentation a criminal offence, as the intention behind such actions is to ‘spoil’ the licit market and misrepresent to the public the legal nature of an object.
The essence behind these provisions is the imposition of lower thresholds for protection on leading actors (dealers/auction houses/galleries/corporations/museums) and private individuals/collectors involved in art trafficking, by criminalising their behaviour, not only where they knew about and were reckless of an object’s illicit origin, but also where they should have been aware of it (especially due to their status/money/equipment/profession). [24] The 2017 regime emphasises the importance of exercising due diligence (tracing the provenance/origin of an artefact), while Bieczyński hails the instrument’s steps in shaping the ‘legal substantiation of good faith’ in transactions involving cultural property. [25]
The Convention continues with provisions criminalising the destruction of cultural property. In the sections that follow, the instrument requires the creation of a ‘transparent [national and international] system of cultural property protection [through collective databases]’, set procedures for ‘reporting […] the discovery by chance of cultural property’, and deter the use of freeports as trafficking centres. [26] It also sets provisions regulating imports/exports; even due diligence procedures to be followed by those involved in art transactions (including museums). [27]
Another innovation of this instrument is that it addresses the e-commerce of cultural property, stressing the need to report suspicious transactions as well as calling ISP providers, online platforms, etc. to work collectively to tackle the online trafficking in cultural property. [28] Undoubtedly, this instrument brings new valuable mechanisms that take into account the realities of our times while addressing the gaps found in preceding instruments. There are, however, voices that speak against enhanced regulation. Their perception is that it can have a counter effect in the sense that it might further spur smuggling practices and fuel the black market. While this argument has a basis, the author's view is that enhanced regulation is necessary to ensure protection, but that only with international cooperation this can be achieved. States must update their laws and adopt common practices as the smuggling of artefacts is largely a cross border phenomenon.
To date, only 13 countries have signed the Nicosia Convention while only 6 (Cyprus, Greece, Italy, Hungary, Latvia and Mexico) have ratified it. [29] It remains to be seen how it will be received by the international community, which currently seems to be largely ignoring it. Admittedly, it seems unlikely that any of the leading market states will sign it, let alone ratify it, due to the strict offences imposed, especially, if we consider the relatively low ratification of the 1995 Rome Convention. As a result, we will have to wait in order to see how this instrument's ambitions will materialise, now that the Convention has finally come into force (1st of April 2022).
Thoughts
The international community has been active in its mission to protect cultural property and regulate its circulation which inevitably transcends national boundaries. Admittedly, the commercialisation of cultural property has proven to be the biggest obstacle in providing a comprehensive regime to successfully tackle art smuggling. This has been the case, mainly, because the leading market states in the sector have traditionally taken differing approaches from each other; importantly, by being reluctant to update their laws, with the ‘justification’ that this would diminish their sovereignty or gravely impact their legal systems. Unfortunately, regardless of any progress, the unwillingness of market states to accede to more drastic instruments is apparent.
Aside from any criticisms, as the burst of international scandals involving stolen/wrongfully exported/imported cultural property and forged art is one that pinpoints leading names in the field, many market states now, slowly or reluctantly move to update their laws to keep up with the pace. On a more positive note, the launch of the newly established international Court of Arbitration for Art, in Hague, is seen as an encouraging step ahead in shaping a new era in the field of dispute resolution over matters concerning art and cultural property. [30]
Endnotes
[1] Lyndel V. Prott, ‘UNESCO and UNIDROIT: A Partnership against Trafficking in Cultural Objects’ [1996] 1 ULR 59, 60.
[2] Ibid 60; Stefano Manacorda, ‘Criminal Law Protection of Cultural Heritage: An International Perspective’ in Stefano Manacorda and Duncan Chappel (Eds), Crime in the Art and Antiquities World - Illegal Trafficking in Cultural Property (Springer, 2011) 17, 34.
[3] Lyndel V. Prott, ‘UNESCO and UNIDROIT: A Partnership against Trafficking in Cultural Objects’ [1996] 1 ULR 59, 61.
[4] ibid 63.
[5] ibid 62.
[6] ibid 65,66.
[7] UNIDROIT Convention Art 2(1).
[8] Prott (n3) 64.
[9] Art. 3; ibid 65.
[10]Art 4; Manacorda (n2) 35.
[11] Prott (n3) 68.
[12] ibid 68.
[13] Manacorda (n2) 34,35.
[14] Prott (n3) 68; Manacorda (n2) 34,35.
[15] Mateusz Maria Bieczyński, ‘The Nicosia Convention 2017: A New International Instrument Regarding Criminal Offences against Cultural Property’ [2017] 3 Santander Art and Culture Law Review 255, 264.
[16] ibid 264.
[17] Art. 1; Bieczyński (n15) 265.
[18] Ibid 266.
[19] Ibid 265.
[20] Ibid 267.
[21] Ibid 267.
[22] Ibid 267.
[23] Ibid 267.
[24] Ibid 267,268.
[25] Ibid 267.
[26] Ibid 268,269.
[27] Ibid 268.
[28] Ibid 268.
[29] Council of Europe, Chart of signatures and ratifications of Treaty 221.
[30] Riah Pryor, 'Art arbitration panel in The Hague steps up a gear to tackle complex disputes' (The Art Newspaper, 8 May 2020).