Marina Schneider - Best practices on legal protection of cultural heritage


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Fight against illicit traffic of cultural property in South-East Europe.
Gaziantep, Turkey, 19-21 November 2012

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Marina Schneider - Best practices on legal protection of cultural heritage

  1. 1. Fight against illicit traffic of cultural property in South East Europe Gaziantep, 19-21 November 2012Best practices on legal protection of cultural heritage Marina SCHNEIDER, UNIDROIT Senior Officer
  2. 2. “Best practices” – “legal protection”• Best practices = comes from lessons learnt, built up from actual experience ►determined subjectively• Legal protection = rules that should dictate what should be protected and how ► objective assessment
  3. 3. What is best practice of legal protection?• Definition: procedures that are accepted or prescribed as being correct or most effective• Best practice on legal protection depends on what is necessary in the particular circumstances• In cultural heritage, it is not possible always to predict circumstances which may arise in the future• Best practice is thinking carefully about the subject matter, the type of protection and the consequences of protection. In other words, careful planning of a comprehensive scheme is best practice.► Comprehensive legal protection is the best approach
  4. 4. NATIONAL LEGISLATION• Protecting its cultural heritage is one of the basic cultural policy interests of any country. On the strictly legal plane, legislations have been adopted at national level.• This is absolutely necessary but national legislation is not sufficient to protect cultural objects properly if these goods are traded internationally.
  5. 5. REGIONAL LEGISLATIONBilateral treatiesSupranational and multilateral legislation – Commonwealth Secretariat – Council of Europe – European Union
  6. 6. Commonwealth SecretariatScheme for the Protection of the Material Cultural Heritage (Mauritius, November 1993)Basic thrust of the Scheme similar to that of the UNIDROIT Conventionon Stolen or Illegally Exported Cultural Objects.An illicitly exported object may be seized by the authorities in therequested State and returned to the requesting State if, within 12months, no court proceedings have been instituted to determinequestions of title and compensation.Alternatively, the requested State may institute proceedings or advisethe requesting State to do so. If the court orders the object to bereturned, the Scheme requires a determination on compensationpayable to the holder. All other questions of title and compensationare to be determined by proceedings in the requesting State.
  7. 7. Council of Europe Conventions– European Convention of 20 April 1959 on Mutual Assistance in Criminal Matters - applied several times in order to return as objects of criminal offences, cultural objects stolen or illegally excavated in the requesting foreign country.– European Convention of 6 May 1969 on the Protection of the Archaeological Heritage (revised in 1992) - obliges the Contracting States, inter alia, to take protective measures with respect to archaeological sites and to consider the establishment of a national inventory of archaeological objects.– European Convention of 23 June 1985 on Offences Relating to Cultural Property - provides a list of offences relating to cultural objects and obliges the Contracting States to amend their criminal law accordingly and to return cultural objects removed subsequent to an offence relating to these objects. Not in force– European Convention of 3 October 1985 on the Protection of the Architectural Heritage in Europe - obliges the State Parties to undertake the direct or indirect protection of their architectural heritage.
  8. 8. Council of Europe Decisions of European Court of Human Rights• Beyeler v. Italy (2000) the Court had to decide whether the Italian authorities in charge of the protection of national treasures violated human rights (right to be heard, right to hold property and to be compensated if taken) when they qualified Vincent van Gogh’s painting “Portrait of a Young Peasant“ as an Italian national treasure to be retained on Italian territory.• Prince Hans-Adam II of Liechtenstein v. Germany (2001) Pieter van Laer’s painting “Szene an einem römischen Kalkofen“returned to the Czech gallery which had lent it for purposes of exhibition in Germany. The Court had to decide whether Germany violated public international law by returning the painting to a Czech owner who might have been the wrong person since the painting was formerly owned by the Princes of Liechtenstein until it was confiscated after World War II under the incorrect assumption that the Princes of Liechtenstein were Germans.
  9. 9. European Union• Council Directive 93/7/ECC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State (and amendments)• Council Regulation (EEC) No. 3911/92 of 9 December 1992 on the export of cultural goods (and amendments)
  10. 10. European UnionStudy on preventing and fighting illicit trafficking in cultural goods in the European Union CECOJI-CNRS – UMR 6224 October 2011 Discrepancies in civil, criminal and specialised legislation which clearly increase the risk of illicit trafficking
  11. 11. INTERNATIONAL LEGISLATION UNESCO legal instruments for the fight against illicit traffic of cultural goods
  12. 12. UNESCO Recommendations Non binding instruments• Recommendation on International Principles Applicable to Archaeological Excavations, 1956• Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property, 1964• .....
  13. 13. Protocol to the 1954 Hague Convention1954 Protocol specifically states that cultural property shall never be retained as war reparation.Each State Party is required, among other things: - to prevent the exportation of cultural property from a territory occupied by it - to take into its custody cultural property imported into its territory - return, at the close of hostilities to the competent authorities of the territory previously occupied such cultural property and pay and indemnity to the holders in good faith of such property
  14. 14. The 1970 UNESCO Convention on the Means ofProhibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property• Preventive measures: Inventories, export certificates, monitoring trade, imposition of penal or administrative sanctions, educational campaigns, etc.• Restitution provisions: States Parties undertake, at the request of the State Party "of origin", to take appropriate steps to recover and return any such cultural property imported after the entry into force of this Convention in both States concerned, provided, however, that the requesting State shall pay just compensation to an innocent purchaser or to a person who has valid title to that property. More indirectly and subject to domestic legislation, Article 13 of the Convention also provides provisions on restitution and cooperation.• International cooperation framework: The idea of strengthening cooperation among and between States Parties is present throughout the Convention. In cases where cultural patrimony is in jeopardy from pillage, Article 9 provides a possibility for more specific undertakings such as a call for import and export controls.
  15. 15. The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects• UNIDROIT was asked by UNESCO to develop a complementary instrument to the 1970 Convention. Goes further to establish rules for restitution and return.• Restitution is a must.• Minimal rules for uniform treatment for restitution of stolen or illegally exported cultural objects and allow restitution claims to be processed directly through national courts.• UNIDROIT Convention covers all stolen cultural objects, and stipulates that all cultural property must be returned.• Evidence of due diligence opens up the possibility for compensation.• Based on national laws which best protect the cultural heritage
  16. 16. For States to become Parties to theinternational conventions would ensure the most comprehensive legal protection
  17. 17. Domestic measures States should take measures at various levels (administrative, legislative, institutional and on international cooperation) Legislative measures• States should carry out a reform of the legislation on cultural heritageprotection, management and promotion, in accordance with thestrategy adopted• Evaluate the preventive effect of penalties on illicit traffic, andexamine, where appropriate, the advisability of revising the relevantcriminal provisions of the law• Support penalties by taking educational and incentive measuresaimed at preventing and reducing illicit traffic in cultural objects• Ensure the legislative implementation of the Hague Convention andits Protocols, the 1970 UNESCO and the 1995 UNIDROIT Conventions
  18. 18. Domestic measuresStates should carry out a reform of the legislation on cultural heritageprotection, management and promotion, in accordance with thestrategy adopted, by emphasizing the following points: – Definition of cultural objects – Ownership and transfer of ownership of public and private cultural objects – Drawing up of inventories – Archaeological excavations – Preventing and combating clandestine excavations – Preventing and combating thefts – Control of commerce, including internet commerce – Export control – Import control – Increased customs monitoring measures – Restitution procedures – Incentives measures – Administrative and criminal penalties – Bi-lateral relations
  19. 19. DEFINITION• Most States have a set of legislative acts which govern the protection of the cultural heritage. The concept of cultural object – terminology used is different (cultural object, antiquities, moveable or immoveable property or objects of a historic or cultural nature, cultural heritage, …)• The legislative technique of legal definition differs (general definition based on the criterion of cultural, historic, artistic, traditional or aesthetic value..., application of a specific date or the criterion of age to define antiquities to be protected)  The variety of definitions precludes the establishment of matches with the definitions used in international conventions  international cooperation is more difficult in the fields of preventing and combating traffic
  20. 20. DEFINITION – general protectionTHEFT combination of a large definition with the principle established in Art. 3 (1) of restitution of stolen objects is probably the most important mean adopted to fight illicit traffic in cultural objectsILLICIT EXPORT the definition is subject to conditions: return is submitted to a violation of some of the interests listed in the requesting State, or to the significant cultural importance of the object for it
  21. 21. DEFINITIONSpecial regimes of protection  stricter definitionsLong time limitations –- objects belonging to a public collection (art.3(4) and (7)),- objects forming an integral part of anidentified monument or archaeological site (art.3(4), and- sacred or communally important culturalobjects belonging to and used by a tribal orindigenous community (art. 3(7))
  22. 22. IDENTIFICATIONInventory of cultural objects may be - a registration system for purposes of identifying and managing the cultural heritage, and - a legal procedure for the categorisation and classification of cultural objects to be protected by law
  23. 23. IDENTIFICATIONFor the purposes of restitution/ return Importance of the inventory as a means of proving ownership of a stolen or illegally exported cultural objectsObligation under the 1970 Convention (art. 7)
  24. 24. Recommended measures Best practice = comes from lessons learnt, built up from actual experience Article 4(4) of the UNIDROIT Convention Determination of due diligenceThe use of the Convention as a benchmark for duediligence evaluation - influence in national legislations - influence in case law - influence in the discussions at European levelregarding the possible revision of the 1993 Directive (WorkPlan for Culture 2011-2014 to produce a toolkit on the fightagainst illicit trafficking and theft of cultural goods)
  25. 25. Concluding remarks• Importance of having a sound and comprehensive set of legislative measures for protection• Importance of the UNESCO’s Cultural Heritage Laws Database