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Edouard Planche - International Legislation: Update, Assessment and Way Forward
 

Edouard Planche - International Legislation: Update, Assessment and Way Forward

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Fight against illicit traffic of cultural property in South-East Europe. ...

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/

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    Edouard Planche - International Legislation: Update, Assessment and Way Forward Edouard Planche - International Legislation: Update, Assessment and Way Forward Presentation Transcript

    • 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
    • Why is UNESCO so engaged in protecting cultural objects ? By its Constitution (mandate for culture) Because of the cultural importance of the object itself Because of increased looting and dismantling of immovable cultural monuments, some being World Heritage Because of the loss of information caused by looting and trafficking (UNESCO’s mandate for the advancement of knowledge)© INTERPOL 1996/24855: sculpture, 3 fountains in shape of lion’s head(hellenistic period), Stolen in the Priene antique city in Turkey on 22 April 1996
    • What does UNESCO mean by “cultural property”? Objects with cultural significance for history, religion, science,… Artefacts, works of art, antiquities… Movable objects  Museum items  Religious objects in religious places  In public or in private collections© INTERPOL2011/56753: Icon stolen in a monastery in Athens(9-10 October 2011), 23 X 21 cm
    • What are the current main risks encountered by cultural objects? Thefts, pillage, illicit import and export, speculation… In particular in the event of armed conflicts (international or civil) and natural disasters (earthquake, tsunami…)© INTERPOL 2010/51540: accessory for piece of clothing, late medieval, Stolen in Vlora, Macedoniaon 12 November 2006
    • What are the current main risks encountered by cultural objects ? Objects removed from under the ground (archaeological excavations): whether removed legally or illegally from their original context or even from underwater: whether removed legally or illegally© INTERPOL2003/31295: painting untitled ‘Kisa’ (‘Rain’)by Pulitika Djuro, 1980Stolen Banja Luka in Bosnia and Herzegovinaon 6 July 2003
    • The international response: A corpus of International Conventions on illicit traffic in Cultural Objects1. Convention for the protection of Cultural Property in the Event of Armed Conflict 1954 (Hague Convention) - States Parties: 1252. First Protocol to the Convention for the protection of Cultural Property in the Event of Armed Conflict 1954 (Hague Convention) - States Parties: 1023. Second Protocol to the Convention for the protection of Cultural Property in the Event of Armed Conflict 1954 (Hague Convention) - States Parties:624. UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 - States Parties: 1235. UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 1995 - States Parties: 336. UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001 - States Parties: 41
    • 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.
    •  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
    • 1954 HAGUE CONVENTION AND PROTOCOLSExample: 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
    • UNESCO Convention on Illicit Traffic 1970  As at November 2012 there are 123 States bound by the Convention
    • INCLUDINGAlbania, Bosnia and Herzegovina, Bulgaria, Croatia, FYR Macedonia, Greece, Montenegro, Romania, Serbia, Turkey and Slovenia CONGRATULATIONS !
    • 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.
    • © INTERPOL 2000/16398: © INTERPOL 2011/8815icon of Saint Nicholas, 1750-1800 Icon stolen in a church in SkopjeStolen in Zadar in Croatia on 8 May between 3 and 4 February 20111999 85 X 44,2 cm
    • 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
    • © INTERPOL2001/16583: votive plaque, 2nd – 3rd centuryStolen in Razgrad in Bulgaria on 12 May 1996
    • 3. Regulating archaeological excavations: Specialised services Authorisations and permits Regulation of finds, storage etc. Metal detectors Diplomatic pouch??
    • © INTERPOL 2007/43340Sculpture ‘Tracian knight and Cybele’, 2nd century B.C.Stolen in Constanta in Romania on 4 August 2007
    • 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
    • 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)
    • Other preventive measures:Article 7 a)to prevent museums and similar institutions from acquiringillegally exported cultural property originating from another StateParty;Effect: Importance of the knowledge of the foreign lawArticle 7 b)to prohibit the import of cultural property stolen from a museumor a religious or secular public monument or from similarinstitution in another State Party (provided that such property isin the inventory of that institution);Effects: importance of inventories Importance of information about thefts
    • Restitution provisions:Article 7 (b), (ii):States Parties undertake, at the request of the State oforigin, to take appropriate steps to recover and return anysuch cultural property imported after the entry into force ofthe Convention in both States concerned, provided,however, that the requesting State shall pay justcompensation to an innocent purchaser or to person whohas a valid title to that property. Requests for recovery andreturn shall be made through diplomatic channels.
    • 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
    • STATES PARTIES UNDERTAKE : to imposepenalties 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)
    • © INTERPOL2004/1030: porcelain, seated man and woman, mid-19thcenturyStolen in Bled in Slovenia on 9 November 2003
    • 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
    • International Cooperation FrameworkArticle 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 itemsArticle 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
    • EXAMPLES OF GOOD PRACTICES: RESTITUTIONS UNDER THE AEGIS OF THE CONVENTIONRestitution 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.
    • 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
    • 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
    • The Meeting of States Parties shall establish aSubsidiary 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
    • 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
    •  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
    • 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.
    • 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.
    • 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 dOeuvres dArt, 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.
    • 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
    • The Commitee acts as a mediator between states in conflicts regarding the return and restitution of cultural propertyMakonde MaskIn May 2010, the Barbier-MuellerMuseum in Geneva agreed forthe restitution of a Makondé Mask to theUnited Republic of Tanzania. Thediscussions in the framework of theCommittee 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.
    • The Committe is an advisory body and forum of negotiationThe 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
    • The Committee iniciates the creation ofpractical 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
    • International Council ofMuseums (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
    • 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
    • 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
    • For more information: Edouard PlancheCultural Heritage Protection Treaties SectionDivision 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