UNIDROIT CONVENTION ON STOLEN OR   ILLEGALLY EXPORTED CULTURAL              OBJECTS         (Rome, 24 June 1995) and its c...
▪ International claims for the restitution and          return of cultural objects         outside the framework of       ...
International claims for the restitution        and return of cultural objects    outside the framework of international  ...
1970 UNESCO Convention   Preventive measures to be taken: inventaries,    export certificates, monitoring trade, impositi...
Why a new Convention ?   Unsatisfactory answers given by the non    conventional law (protection of the good faith acquir...
Definition of cultural objects   UNESCO 1970 (art. 1) and UNIDROIT 1995 (art.    2) share the same definition (importance...
The restitution of stolen objects                               UNESCO 1970                                     Article 3 ...
The restitution of stolen objects                  UNIDROIT 1995The principle  The possessor of a cultural object which ha...
The restitution of stolen objectsTwo accessory rules  1) Time limitations: 3 years / 50 years   a claim for restitution of...
The restitution of stolen objectsTwo accessory rules  2) Right to payment of a reasonable compensation for     the acquire...
The return of illegally exported              cultural objects                                 UNESCO 1970The Convention c...
The return of illegally exported               cultural objects                             UNIDROIT 1995   The principle...
Archaeological objects               UNESCO 1970                 Article 9Any State Party …, whose cultural patrimonyis in...
Archaeological objects                                          UNIDROIT 1995                                             ...
traditional or ritual use of the object by   a tribal or indigenous community                                          Pre...
Article 13(3)    In their relations with each other,Contracting States which are Members oforganisations of economic integ...
No retroactive applicationThe Convention only applies to objects stolen or illegally          exported after its entry int...
The UNIDROIT Convention           A base for the futureA strong influence on national legislations              and on cas...
Minimum Protection  The Convention establishes common,          minimal legal rules                Article 9 (1)Nothing in...
Increase the number of States                 Parties   33 States Parties    Afghanistan, Argentina, Azerbaijan, Bolivia,...
Facilitate the application of the              ConventionArticle 3(2) 1995 Convention  An unlawfully excavated cultural ob...
A better follow-up of the Convention                   19 June 2012  first meeting of the special committee in order to   ...
CONCLUSIONThe main objective of the Convention is not   to increase the number of restitutions /   returns but to change t...
UNIDROIT       Via Panisperna 28      00185 Roma (Italy)     Tel. +39 06 69 62 142    Fax +39 06 69 94 13 94e.mail: m.schn...
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Marina Schneider - 1995 UNIDROIT Convention

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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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Marina Schneider - 1995 UNIDROIT Convention

  1. 1. UNIDROIT CONVENTION ON STOLEN OR ILLEGALLY EXPORTED CULTURAL OBJECTS (Rome, 24 June 1995) and its complementarity with the 1970 UNESCO Convention Fight against illicit traffic of cultural property in South-East Europe Regional training workshop Gaziantep, Turkey, 19 – 21 November 2012
  2. 2. ▪ International claims for the restitution and return of cultural objects outside the framework of international conventions▪ International claims for the restitution and return of cultural objects within the framework of the UNIDROIT Convention
  3. 3. International claims for the restitution and return of cultural objects outside the framework of international conventions Claims by the owner victim of theft –differences in legislations, in particular on theprotection of the good faith acquirer Claims by a State in the event of illegalexport – In principle, no extraterritorialrecognition of the national laws prohibiting export
  4. 4. 1970 UNESCO Convention Preventive measures to be taken: inventaries, export certificates, monitoring trade, imposition of penal or administrative sanctions, educational campaigns, etc. Restitution provisions (art. 7(b)(ii)) International cooperation framework: the idea of strenghtening cooperation among and between States Parties is present throughout the Convention (possibility for more specific undertakings)
  5. 5. Why a new Convention ? Unsatisfactory answers given by the non conventional law (protection of the good faith acquirer) Existing conventions not satisfactory as far as private law aspects of the protection of cultural objects are concerned (good faith, time limitations, court jurisdiction…) Is a very good example of co-operation between States and international organisations Adopts a highly constructive approach
  6. 6. Definition of cultural objects UNESCO 1970 (art. 1) and UNIDROIT 1995 (art. 2) share the same definition (importance and categories) Article 2 …. cultural objects are those which, on religious or secular grounds, are of importance for archaeology, prehistory, history, literature, art or science and belong to one of the categories listed in the Annex to this Convention. An important difference objects must not be “specifically designated” by the State to benefit from the protection given by the 1995 Convention
  7. 7. The restitution of stolen objects UNESCO 1970 Article 3 The import, export or transfer of ownership of cultural property effected contrary to the provisions adopted under this Convention by the States Parties thereto, shall be illicit. Article 7(b)(ii) Restitution of cultural property stolen in a museum or a religious or secular public monument or similar institution ... Provided that such property is documented as appertaining to the inventory of that institution States Parties undertake to take appropriate steps to... return any such property … provided that the requesting State shall pay just compensation to an innocent purchaser...
  8. 8. 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))
  9. 9. The restitution of stolen objectsTwo accessory rules 1) Time limitations: 3 years / 50 years a claim for restitution of an cultural object forming an integral part of an identified […] archaeological site, [….] shall not be subject to time limitations other than a period of three years [..] any Contracting State may declare that a claim is subject to a time limitation of 75 years or such longer period as is provided in its law
  10. 10. The restitution of stolen objectsTwo accessory rules 2) Right to payment of a reasonable compensation for the acquirer who exercised due diligence Article 4(4) In determining whether the possessor exercised due diligence, regard shall be had to all the circumstances of the acquisition, including […] whether the possessor consulted [..] and any other relevant information and documentation which it could reasonably have obtained, and whether the possessor consulted accessible agencies or […].
  11. 11. The return of illegally exported cultural objects UNESCO 1970The Convention contains no specific measures concerning the obligation for States to conform to other countries’ export lawsArt. 3: no State of the international art market has ever accepted that the obligationof Art. 3 concerned all illegally exported objectsArt. 7(a): take measures to prevent museums from acquiring cultural propertywhich has been illegally exported …Art. 9: in case of danger for the archaeological heritage States Parties undertake toparticipate in a concerted international effort to carry out the necessary concretemeasures, inlucluding the control of exports ...Art. 13(b): cooperation in facilitating the earliest possible restitution of illicitelyexported objects to its rightful owner....
  12. 12. The return of illegally exported cultural objects UNIDROIT 1995 The principle - Removal of the object … contrary to the law regulating the export of cultural objects (Article 5(1)), and - The export significantly impairs a scientific or historic interest, or the object is of significant interest for the requesting State (Article 5(3)) The conditions for return - Time limitations - Compensation or other possibilities
  13. 13. Archaeological objects UNESCO 1970 Article 9Any State Party …, whose cultural patrimonyis in jeopardy from pillages of archaeologicalor ethnological materials may call upon other States who are affected (bilateral agreements)
  14. 14. Archaeological objects UNIDROIT 1995 PreambleDeeply concerned by […] the irreparable damage […] and in particular by the pillage of archaeological sites andthe resulting loss of irreplaceable archaeological, historical and scientific information Article 3(2) and 3(4)For the purposes of this Convention, a cultural object which has been unlawfully excavated or lawfully excavatedbut unlawfully retained shall be considered stolen, when consistent with the law of the State where theexcavation took place.[...] a claim for restitution of an object forming an integral part of an identified monument or archaeological site[…] shall not be subject to time limitations other than a period of three years […] Article 5(3)[…] the removal of the object significantly impairs […]:a) the physical preservation of the object or of its context;b) the integrity of a complex object;c) the preservation of information of, for example, a scientific or historical character;d) the traditional or ritual use of the object by a tribal or indigenous community,or establishes that the object is of significant importance for the requesting State.
  15. 15. traditional or ritual use of the object by a tribal or indigenous community PreambleDEEPLY CONCERNED by the illicit trade in cultural objects and the irreparable damage frequently caused by it, both to these objects themselves and to the cultural heritage of national, tribal, indigenous or other communities, and also to the heritage of all peoples, … Article 3(8)… a claim for restitution of a sacred or communally important cultural object belonging to andused by a tribal or indigenous community in a Contracting State as part of that communitystraditional or ritual use, shall be subject to the time limitation applicable to public collections. Article 5(3)(d)… the removal of the object from its territory significantly impairs one or more of the followinginterests: (d) the traditional or ritual use of the object by a tribal or indigenous community, Article 7(2)the provisions of this Chapter shall apply where a cultural object was made by a member ormembers of a tribal or indigenous community for traditional or ritual use by that community andthe object will be returned to that community.
  16. 16. Article 13(3) In their relations with each other,Contracting States which are Members oforganisations of economic integration […]may declare that they will apply theinternal rules of these organisations […]and will not therefore apply as betweenthese States the provisions of thisConvention the scope of application ofwhich coincides with that of those rules.
  17. 17. No retroactive applicationThe Convention only applies to objects stolen or illegally exported after its entry into force BUTit in no way confers any approval or legitimacy uponillegal transactions of whatever kind which may havetaken place before the entry into force of the Conventionnor limits any right or claim outside the framework ofthe Convention for the restitution or return (bilateralagreement, agreements between institutions, UNESCOIntergovernmental Committee …)
  18. 18. The UNIDROIT Convention A base for the futureA strong influence on national legislations and on case lawalso in countries not Parties to the Convention
  19. 19. Minimum Protection The Convention establishes common, minimal legal rules Article 9 (1)Nothing in this Convention shall prevent aContracting State from applying any rules more favourable to the restitution or thereturn of stolen or illegally exported culturalobjects than provided for by this Convention.
  20. 20. Increase the number of States Parties 33 States Parties Afghanistan, Argentina, Azerbaijan, Bolivia, Brazil, Cambodia, China, Colombia, Croatia, Cyprus, Ecuador, El Salvador, Finland, Gabon, Greece, Guatemala, Hungary, Iran, Italy, Lithuania, Nigeria, Norway, New Zealand, Panama, Paraguay, Peru, Portugal, Romania, Slovakia, Slovenia, Spain 2 new accessions (waiting for the deposit of the instrument with the Depositary) Algeria, Angola Decision taken to become Party
  21. 21. Facilitate the application of the ConventionArticle 3(2) 1995 Convention An unlawfully excavated cultural object = a stolen object, when consistent with the law of the State where the excavation took place.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
  22. 22. A better follow-up of the Convention 19 June 2012 first meeting of the special committee in order to review the practical operation of the Convention (Art. 20) Future meetings will be possibly linked to the new mechanism of supervision of the 1970 Convention
  23. 23. CONCLUSIONThe main objective of the Convention is not to increase the number of restitutions / returns but to change the behaviour of buyers“A convention which is looking for legally binding solutions should not start from the maximum expectations of those who will gain from it, but from an acceptable minimum, thanks to the understanding and to political pressure, by the presumed loosers”
  24. 24. UNIDROIT Via Panisperna 28 00185 Roma (Italy) Tel. +39 06 69 62 142 Fax +39 06 69 94 13 94e.mail: m.schneider@unidroit.org www.unidroit.org

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