Fight against illicit traffic of cultural property in South-East Europe. Gaziantep, Turkey, 19-21 November 2012. Link: http://www.unesco.org/new/en/venice/about-this-office/single-view/news/building_capacities_for_the_fight_against_the_illicit_trafficking_of_cultural_property_ in_south_east_europe/

1. UNESCO – UNIDROIT
Model provisions on State
Ownership of
Undiscovered Cultural Objects
Marina SCHNEIDER, UNIDROIT Senior Officer
Workshop in Gaziantep, November 2012

2. Cultural object dstolen or unlawful ly exported -
the State victim may want to recover it if found in
another country
► need to have a legal system giving it the best
possible arguments for return, i.e. an ownership
right to be recognised by the courts in the other
country
Particularly important when an unknown object
is removed from the ground and taken out of the
country. The State needs a basis on which to
claim the return other than the mere fact that it
was found on its territory.

3. UNESCO Recommendation on International
Principles Applicable to Archaeological
Excavations, 1956
General principle that each State should
ensure the protection of its archaeological
heritage.
States should « define the legal status of the
archaeological subsoil and, where State
ownership of the said subsoil is recognized,
specifically mention the fact in its legislation. »

4. The restitution of stolen objects
UNIDROIT 1995
The principle
The possessor of a cultural object which has
been stolen shall return it (Article 3(1))
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))

5. ECOSOC 2008/23 Resolution
« need, where appropriate, to strengthen and
fully implement mechanisms for the return or
restitution of cultural property […] »
« 4. Encourages Member States asserting State
ownership of cultural property to consider
means of issuing statements of such ownership
with a view to facilitating the enforcement of
property claims in other States; »

6. UNESCO - UNIDROIT
Has the legislation claiming State ownership really
the effect claimed, in particular for undiscovered
archaeological objects?
UNESCO – UNIDROIT Model Provisions on
State Ownership of Undiscovered Cultural
Objects with explanatory guidelines

7. • Expert Committee on States’
Ownership of Cultural Heritage
» Mandate
» Composition
» Meetings
• Model Provisions : main features

8. Expert Committee
on States’ Ownership of Cultural Heritage
Mandate
“[A]cknowledging the obstacles faced by many countries
in applying for restitution of cultural property, especially
when it comes to materials from cultural sites where
there is no inventory or provenance documentation, in
particular objects coming from illicit excavations” the
Intergovernmental Committee recommends “the
preparation of model provisions with explanatory
guidelines to be made available to States to consider
in the drafting or strengthening of national laws”
(Recommendation N° 3, 16th session of the Intergovernmental Committee,
Paris 2010)

9. Expert Committee
on States’ Ownership of Cultural Heritage
Composition
Co-chairs - Dr. Jorge Sánchez Cordero (Mexico) and
Prof. Marc-André Renold (Switzerland)
Members - Folarin Shyllon (Nigeria), Thomas
Adlercreutz (Sweden), James Ding (China), Manlio
Frigo (Italy), Vincent Négri (France), Patrick O’Keefe
(Australia) and Norman Palmer (United Kingdom)
Both the UNIDROIT and UNESCO Secretariats

10. Expert Committee
on States’ Ownership of Cultural Heritage
Meetings
The Expert Committee met formally on three occasions
in Paris (September 2010, March 2011 and June 2011).
Several exchanges among the members of the
Committee also took place via e-mail.
Great efforts made to come to a short text, with only six
provisions, which aims, in line with the 1970 UNESCO
and the 1995 UNIDROIT Conventions, to encourage the
protection of archeological objects and to favour their
restitution to the State where illicit excavations took
place

11. Model Provisions on State
Ownership of
Undiscovered Cultural Objects
with explanatory guidelines
Non binding instrument

12. Provision 1
(General Duty)
The State shall take all necessary
and appropriate measures to
protect Undiscovered Cultural
Objects and to preserve them for
present and future generations.
.

13. Provision 2
(Definition)
Undiscovered cultural objects
include objects which, consistently
with national law, are of importance
for archaeology, prehistory, history,
literature, art or science and are
located in the subsoil or underwater.
Not exhaustive but could be limited

14. Provision 3
(State Ownership)
Undiscovered Cultural Objects are
owned by the State, provided there is
no prior existing ownership.
Objects are owned by State before being
discovered – avoid interpretation of vague
legislations.

15. Provision 4
(Illicit excavation or retention)
Cultural objects excavated contrary
to the law or licitly excavated but
illicitly retained are deemed to be
stolen objects.
Effects of the principle of State’s ownership once the
objects are discovered. Licit or illicit nature of excavation
to be determined by additional national legislation

16. Provision 5
(Inalienability)
The transfer of ownership of a
cultural object deemed to be stolen
under Provision 4 is null and void,
unless it can be established that the
transferor had a valid title to the object
at the time of the transfer.
Private law complement of Prov. 4 – such
oitems may not be the object of private
rights.

17. Provision 6
(International enforcement)
For the purposes of ensuring the
return or the restitution to the enacting
State of cultural objects excavated
contrary to the law or licitly excavated
but illicitly retained, such objects shall
be deemed stolen objects.
Aims at facilitating restitution and return