Marina Schneider - Model provisions on State Ownership of Undiscovered Cultural Objects

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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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  • 1. UNESCO – UNIDROIT Model provisions on State Ownership ofUndiscovered 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, 1956General principle that each State shouldensure the protection of its archaeologicalheritage.States should « define the legal status of thearchaeological subsoil and, where Stateownership of the said subsoil is recognized,specifically mention the fact in its legislation. »
  • 4. The restitution of stolen objects UNIDROIT 1995The 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 considermeans of issuing statements of such ownership with a view to facilitating the enforcement of property claims in other States; »
  • 6. UNESCO - UNIDROITHas 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 CompositionCo-chairs - Dr. Jorge Sánchez Cordero (Mexico) andProf. Marc-André Renold (Switzerland)Members - Folarin Shyllon (Nigeria), ThomasAdlercreutz (Sweden), James Ding (China), ManlioFrigo (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 MeetingsThe Expert Committee met formally on three occasionsin Paris (September 2010, March 2011 and June 2011).Several exchanges among the members of theCommittee also took place via e-mail.Great efforts made to come to a short text, with only sixprovisions, which aims, in line with the 1970 UNESCOand the 1995 UNIDROIT Conventions, to encourage theprotection of archeological objects and to favour theirrestitution to the State where illicit excavations tookplace
  • 11. Model Provisions on State Ownership ofUndiscovered 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 objectsinclude objects which, consistentlywith national law, are of importancefor archaeology, prehistory, history,literature, art or science and arelocated in the subsoil or underwater. Not exhaustive but could be limited
  • 14. Provision 3 (State Ownership) Undiscovered Cultural Objects areowned by the State, provided there isno prior existing ownership.Objects are owned by State before beingdiscovered – avoid interpretation of vaguelegislations.
  • 15. Provision 4 (Illicit excavation or retention) Cultural objects excavated contraryto the law or licitly excavated butillicitly retained are deemed to bestolen objects.Effects of the principle of State’s ownership once theobjects are discovered. Licit or illicit nature of excavationto 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 thereturn or the restitution to the enactingState of cultural objects excavatedcontrary to the law or licitly excavatedbut illicitly retained, such objects shallbe deemed stolen objects.Aims at facilitating restitution and return