The document discusses UNESCO's efforts to protect cultural property from illicit trafficking through international conventions and cooperation between states. It summarizes key international agreements for preventing trafficking of cultural objects during armed conflicts and returning illegally exported cultural property. The document outlines UNESCO's definition of cultural property and the main risks such as theft, looting, and removal from archaeological sites. It also discusses states' obligations under the conventions to establish export controls and impose penalties for illicit trafficking.
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Edouard Planche - International Legislation: Update, Assessment and Way Forward
1. Fight Against Illicit Traffic
of Cultural Property
in South-Eastern Europe
Gaziantep, turkey, 19-22 November 2012
International Legislation:
Update, Assessment and Way Forward
Edouard Planche
Programme Specialist, UNESCO Culture Sector
6. The international response:
A corpus of International Conventions on illicit
traffic in Cultural Objects
1. Convention for the protection of Cultural Property in the Event of Armed
Conflict 1954 (Hague Convention) - States Parties: 125
2. First Protocol to the Convention for the protection of Cultural Property in
the Event of Armed Conflict 1954 (Hague Convention) - States Parties: 102
3. Second Protocol to the Convention for the protection of Cultural Property
in the Event of Armed Conflict 1954 (Hague Convention) - States Parties:62
4. UNESCO Convention on the Means of Prohibiting and Preventing the Illicit
Import, Export and Transfer of Ownership of Cultural Property 1970 -
States Parties: 123
5. UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects
1995 - States Parties: 33
6. UNESCO Convention on the Protection of the Underwater Cultural
Heritage 2001 - States Parties: 41
7. 1954 HAGUE CONVENTION AND PROTOCOLS
The 1954 Convention protects “Cultural Property” in the event of armed
conflict
The First Protocol to the Convention:
Prevents export of movable cultural objects from occupied territories.
• Article 1: Each High Contracting Party undertakes to prevent the
exportation, from a territory occupied by it during an armed
conflict, of cultural property as defined in Article I of the
Convention…
Requires the return of object illegally exported
• Article 3: Each High Contracting Party undertakes to return, at
the close of hostilities, to the competent authorities of the territory
previously occupied, cultural property which is in its territory, if
such property has been exported in contravention of the principle
laid down in the first paragraph. Such property shall never be
retained as war reparations.
8. The Second Protocol to the Convention:
Elaborates the provisions of the Convention relating to safeguarding
and respect for cultural property and conduct of hostilities;
Provides greater protection by creating a new category of enhanced
protection for cultural heritage
particularly important for humankind,
which enjoys proper legal protection at the national level, and
is not used for military purposes.
Specifies the sanctions to be imposed for serious violations of cultural
property
Defines the conditions of criminal responsibility
Establishes a 12 member Intergovernmental Committee to oversee the
implementation of the Second Protocol and de facto the Convention.
The 2nd Protocol does not replace but complements the Hague
Convention
9. 1954 HAGUE CONVENTION AND
PROTOCOLS
Example: Iraq-Kuwait conflict 1990
Iraqi officials transported cultural objects from occupied Kuwait to
Baghdad Museum
UNESCO called for respect of Protocol I by Iraq
Iraq invoked “internal transport”
UN General Assembly resolution called for return to Kuwait
Return under the Protocol I organized in sept/oct 1991 by UN
10. UNESCO Convention on Illicit Traffic 1970
As at November 2012 there are
123 States bound by the Convention
11. INCLUDING
Albania, Bosnia and Herzegovina, Bulgaria,
Croatia, FYR Macedonia, Greece,
Montenegro, Romania, Serbia, Turkey
and Slovenia
CONGRATULATIONS !
12. A clear LEGISLATION
1. Defining cultural property:
(a) Rare collections and specimens and objects of
paleontological interest;
(b) Property relating to history, to the life of national
personalities and to events of national importance;
(c) products of archaeological excavations (including
regular and clandestine);
(d) elements of artistic or historical monuments or
archaeological sites dismembered;
(e) antiquities more than one hundred years old;
(f) objects of ethnological interest;
(g) property of artistic interest.
14. 2. Establishing State’s ownership
on cultural heritage
in particular archaeological heritage
specially when not yet or illicitly excavated
from the national territory.
one tool:
the UNESCO-UNIDROIT Model Provisions
18. In summary:
Requests to States to adopt preventive measures:
national services
drafting laws on export, import and transfer of
ownership of important cultural property
national inventories of protected property
list of important public and private objects
promoting museums
educational campaigns
rules for curators, collectors and dealers
export certificates
sanctions
19. STATES PARTIES UNDERTAKE :
to introduce a system of export certificate
export of cultural objects not accompanied
by such an export certificate is prohibited
(Article 6)
20. Other preventive measures:
Article 7 a)
to prevent museums and similar institutions from acquiring
illegally exported cultural property originating from another State
Party;
Effect: Importance of the knowledge of the foreign law
Article 7 b)
to prohibit the import of cultural property stolen from a museum
or a religious or secular public monument or from similar
institution in another State Party (provided that such property is
in the inventory of that institution);
Effects: importance of inventories
Importance of information about thefts
21. Restitution provisions:
Article 7 (b), (ii):
States Parties undertake, at the request of the State of
origin, to take appropriate steps to recover and return any
such cultural property imported after the entry into force of
the Convention in both States concerned, provided,
however, that the requesting State shall pay just
compensation to an innocent purchaser or to person who
has a valid title to that property. Requests for recovery and
return shall be made through diplomatic channels.
22. Restitution provisions:
• after the entry into force of the Convention in both States
concerned: no retroactivity of the Convention
• just compensation” is paid to an innocent purchaser or to
person who has a valid title to that property : no definition of
just compensation and innocent purchaser
• diplomatic channels: the requesting State has to produce
the evidences
• only applies to inventoried objects stolen from a museum, a
religious or secular public monument or a similar institution :
not from private collection
23. STATES PARTIES UNDERTAKE :
to impose
penalties or administrative sanctions when:
exportation without export certificate
or
importation of cultural property from
museums, religious or secular public
monument or institution in another State party
(Article 8)
25. International Cooperation Framework
• Article 9, any State to the Convention whose cultural
patrimony is in jeopardy from pillage of archaeological or
ethnological materials may call upon other States Parties
who are affected;
• The State Parties are invited to participate in a concerted
international effort to determine and to carry out the
necessary concrete measures, including the control of
exports and imports and international commerce in the
specific material concerned
Example : bilateral agreement between the United
States of America and several other States parties
such as Greece
26. International Cooperation Framework
Article 13:
Parties to the Convention are required to have
their police forces and other competent
authorities cooperate to ensure speedy return
and restitution of trafficked items
Article 15:
States Parties can conclude special agreements among
themselves or continue to implement agreements
already concluded regarding the restitution of cultural
property removed from its territory of origin before the
entry into force of this Convention
27. EXAMPLES OF GOOD PRACTICES:
RESTITUTIONS UNDER THE AEGIS OF THE CONVENTION
Restitution Canada-Bulgaria (10 June 2011)
The Government of Canada returned to the Republic
of Bulgaria 21,000 coins, pieces of jewellery, and other
objects that were illegally imported to Canada and
seized by the Royal Canadian Mounted Police.
28. Impact of the 1970 UNESCO Convention
1970 considered as a legal and moral time-limit
Change of attitude, both with governments which are parties to
the Convention and those which are not
Many museums have changes attitude and adopted codes of
ethics on the acquisition of cultural property –based also on the
Code of Professional ethics adopted in 1986 by the International
Council of Museum (ICOM)
Legal and moral pressure on the art market and dealers who
are now more aware of what is considered by the international
community to be right and wrong
29. NEW PERSPECTIVES FOR THE 1970 CONVENTION
A Meeting of States Parties:
Convened every two years
Representatives of the States Parties participate, with right
to vote
Representatives of Member States of UNESCO not parties
participate without right to vote
Representatives of the UN, organizations of the UN
system, other IGOs with mutual representation agreements
with UNESCO and IGOs and NGOs observers invited by
the D-G participate without right to vote
Other representatives or observers invited by the D-G
participate without right to vote
30. The Meeting of States Parties shall establish a
Subsidiary Committee
Convened every year
Composed of 18 States Parties, 3 per regional group,
elected by the Meeting of States Parties
Election of the Committee shall obey the principles of
equitable geographical representation and rotation
Members elected for four years
Every two years, the Meeting of States Parties renew
half of the members of the Committee.
A member to the Committee may not be elected for two
consecutive terms
31. Functions of the Committee:
Promote the purposes of the Convention
Review national reports presented by the
States Parties
Exchange best practices
Prepare and submit recommendations
and guidelines to contribute to the
implementation of the Convention
Identify problem of implementation,
including issues of return
32. Initiates and maintain co-ordination with the
Intergovernmental Committee for Promoting the
Return of Cultural Property to its Countries of Origin
or its Restitution in case of Illicit Appropriation in
relation to capacity building measures combating
illicit traffic in cultural property
Report to the Meeting of States Parties on the
activities carried out
States Parties not members of the Committee, and
other Member States of UNESCO participate in the
meetings of the Committee, as observers.
Person or entity with recognized competence in
protection of cultural heritage and combating illicit
trafficking of cultural property can be invited
33. Other UNESCO initiatives and tools…
Facilitating bilateral negotiations through the UNESCO
Intergovernmental Committee: for non-judicial issues: mediation,
conciliation,…
E.g. The committee facilitated the return of the Makonde Mask
by the Barbier-Mueller Museum to the United Republic of
Tanzania in 2010
Database of National Cultural Heritage Laws – 2005
an international solution to combat the illicit traffic of cultural
property
A compilation of national laws currently in force to protect
cultural heritage; import/export certificates for cultural
property; official or unofficial translations of laws and
certificates; contact details for the national cultural heritage
authorities; and addresses of websites for the protection of
cultural heritage.
34. Other UNESCO initiatives and tools…
UNESCO-WCO Model export certificate for cultural objects – 2005
A standard, rigorous yet practical, model export certificate that it
is recommended for member states to adopt.
corresponds to useful requirements for identifying and tracing
cultural objects, without, however, being too restrictive for
exporters and customs services.
Trafficking on the Internet: Basic Actions concerning Cultural
Objects being offered for Sale over the Internet (INTERPOL-
UNESCO-ICOM) – 2007
An ‘invitation’ for participants to crack-down in the sale of cultural
objects over the internet.
35. Other UNESCO initiatives and tools…
UNESCO promotes an International Code of Ethics for Dealers in
Cultural Property which builds on the principles laid down in the
1970 Convention. It is also based on various national codes and
Dealers' Codes (such as the code of the international federation of
art and antique dealer associations (Confédération internationale
des Négociants d'Oeuvres d'Art, CINOA).
Rules of Procedure for Mediation and Conciliation in request for
return or restitution cases – 2010
A set of rules and guidance to be applied by when seeking Alternative Dispute Resolution
through the Intergovernmental Committee process established by the 1970 Convention
Model Provisions on State Ownership of Undiscovered Cultural
Objects – 2011
Model provisions established by UNESCO and UNIDROIT to assist States in adopting
effective legislation for the establishment and recognition of the State’s ownership of
undiscovered cultural objects.
36. Intergovernmental Committee for Promoting the
Return of Cultural Property to its Countries of
Origin or its Restitution in Case of Illicit
Appropriation (22 States Members)
Negociation forum for the restitution of cultural property
with a particular significance
AFGHANISTAN MADAGASCAR
ARGENTINA MEXICO
AZERBAIJAN NIGERIA
CAMEROON PERU
CHINA POLAND
CYPRUS REPUBLIC OF KOREA
EGYPT ROMANIA
GUATEMALA SENEGAL
INDIA SWITZERLAND
IRAQ SYRIAN ARAB REPUBLIC
JAPAN TURKEY
Their mandate will expire in 2013
Their mandate will expire in 2015
37. The Commitee acts as a mediator between states in conflicts
regarding the return and restitution of cultural property
Makonde Mask
In May 2010, the Barbier-Mueller
Museum in Geneva agreed for
the restitution of a Makondé Mask to the
United Republic of Tanzania. The
discussions in the framework of the
Committee began in 2006.
Sphinx of Bogazkoy
In May 2011, a bilateral agreement has
been reached between Germany and
Turkey on the Bogazkoy Sphinx. This
case was presented to the Committee
in 1987.
38. The Committe is an advisory body
and forum of negotiation
The Parthenon marbles
ongoing discussions between Greece and the
United Kingdom in respect of the reunification of
the Parthenon Sculptures
Sustains cooperation between the British
Museum and the Acropolis Museum
39. The Committee
iniciates the creation of
practical and operational tools
• Mediation and Conciliation Rules (2011)
• Model Provisions on State Ownership on
Cultural Heritage (2011)
• Model Export Certificate (UNESCO – WCO)
• Database of National Cultural Heritage Laws
• Database on restitution cases
• Code of ethics (UNESCO International Code of
Ethics for Dealers in Cultural Property)
• Awareness-raising campaigns
40. International Council of
Museums (ICOM) initiatives
and tools…
ICOM Code of Ethics for Museums – 1986
(revised 2004)
Sets minimum standards for museum staff and outlines
public expectation from the museum profession.
ICOM ‘100 missing objects’ -from 1993
Looting in Angkor (1993, 2nd edition in 1997); Looting in
Africa (1994, 2nd edition in 1997); Looting in Latin America
(1997); Looting in Europe (2001).
Red lists of cultural objects at risk (ICOM) – 2000
African Archaeological Objects, 2000; Latin American Cultural Objects at Risk 2003; Iraqi
Antiquities at Risk, 2003; Afghanistan Antiquities at Risk, 2006; Peruvian Antiquities at Risk,
2007; Cambodian Antiquities at Risk, 2009; Endangered Cultural Objects of Central America
and Mexico, 2009; Haitian Cultural Objects at Risk, 2010; Chinese Cultural Objects at Risk,
2010; Colombian Cultural Objects at Risk, 2010; Egyptian Cultural Objects at Risk, 2011
41. At country level: suggested practical
measures and tools
Training of police and customs
Physical/mechanical protection of archaeological sites
Encourage dialogue with dealers
further promote the International Code of Ethics for Dealers in
Cultural Property 1999 and always encourage dealers in cultural
property to collaborate with government to prevent and report
theft, trafficking and smuggling of cultural property.
Monitor sales on internet
Consult legislation on www.unesco.org/culture/natlaws
42. At country level: suggested practical
measures and tools
Object ID
Easy-to-use minimum
standard for recording
data about cultural
objects
Can assist in recovery
Accessible for non
specialists
43. For more information:
Edouard Planche
Cultural Heritage Protection Treaties Section
Division for Cultural Expressions and Heritage
Tel: 00.33.1.45.68.44.04
Fax: 00.33.1.45.68.55.96
@: e.planche@unesco.org
www.unesco.org/culture/fr/illicittrafficking