Sydney CHICHE-ATTALI - PPT The Restitution of Art and Cultural Goods - April 2020

THE RESTITUTION OF ART AND CULTURAL
GOODS
Sydney CHICHE-ATTALI, Lawyer, Paris Bar
Cabinet Pierrat & Associés
Training – 15th April 2020
1

Introduction
2
• Example: Egypt Heritage
• France recent cases:
- South African human skeleton
- Korean manuscripts
- Maori skulls to the people of New Zealand
• Iran and Turkey
• European countries: Greece, Italy, France, Germany
• African Works of Art: E. Macron, Ouagadougou Speech (Burkina Faso), on 28 November 2017

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• E. Macron, Ouagadougou Speech (Burkina Faso), on 28 November 2017 :
"The first remedy is culture, in this field, I cannot accept that a large part of the cultural
heritage of several African countries is in France.
There are historical explanations for this, but there is no valid, lasting and unconditional
justification, African heritage cannot be only in private collections and museums in Europe.
The African heritage must be highlighted in Paris but also in Dakar, Lagos, Cotonou, this
will be one of my priorities.
I want the conditions to be in place within five years for the temporary or permanent
restitution of the African heritage in Africa.”

4
• Two rapporteurs:
- Bénédicte Savoy
- Felwine Sarr
• “Report on the restitution of African
cultural heritage. Towards a new
relational ethic", November 2018,
• Problems: methodology and legal
reasoning (reversal of the burden of
proof)
• the issue of restitution is inseparable
from that of illicit trafficking
Law adopted in 2002 for the Hottentote
Venus returned to South Africa
Law adopted in 2010 for the Maori heads
returned to New Zealand

5
• A cross-border character issue
• Legal global art market’s value in
2016 : between US$45 and US$57
billion
• Illegal global art market’s value
per year : between US $6 and
US$8 billion ; about one seventh
the legal global art market.
• Main destinations for illegal
trade : North America and Europe
markets.
• Looted works of art and cultural
goods are introduced into the legal
art market via galleries and auction
houses.
• Looted works of art and cultural
goods often come to light as a
result of the context or by
accident.
• The « Gurlitt Case »

6
• Recently at stake : stolen cultural property by terrorist
group in Irak and Syria
• Terrorist groups (ISIS) finance themselves with through the
illegal art market.
• Cultural goods are put on sale by auction houses in Europe
and internationally.
6

7
• The cross-border character of
restitution claims implies :
 Additional costs for claimants and
buyers of works
 Several national jurisdictions with
differing rules regarding
 Fragmented and incomplete
international and European legal
instruments
7
• Restitution claims - Claimants and
owners face a number of legal
problems :
 Varying access to data from
nation to nation
 Differing legal standards
 Limitation periods for submitting
restitution claims
 Good faith acquisition

8
• 3 instruments at the international level :
1. Hague Convention - The first (1954) and second (1999) protocol of the
Hague Convention for the Protection of Cultural Property in the Event of
Armed Conflicts.
2. UNESCO Convention - The 1970 UNESCO Convention on the Means of
Prohibiting and Preventing the Illicit Import, Export and Transfer of
Ownership of Cultural Property.
3. UNIDROIT Convention - The 1995 Convention on Stolen or Illegally
Exported Cultural Objects adopted by the International Institute for
Private Law.
• Customary International Law
8

99
• Legislation at the European level :
 EU Directive 2014/60 on the return of cultural objects unlawfully removed
from the territory of a Member State
 EU Regulation 1215/2012 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters, and in particular
Article 7(4) thereof.
 The new EU Regulation 2019/880, of June 2019, on the introduction and
the import of cultural goods

1010
 Focus on Public international law
 Small exceptions of private law :
◉ UNIDROIT Convention
◉ EU EU Regulation 1215/2012, with its Article 7(4) referring to civil claims
for the recovery of a cultural object.
 Legal uncertainty in cases

PART I
11
I. The restitution of Art
and Cultural Goods:
International and
Regional legal
framework

A – History
• Article CXIV of the Peace Treaty of Westphalia, 1648  provisions on the return of
looted artefacts.
• Convention of Paris, 1815  the return to its country of origin of both confiscated
property.
 First international regulations on cultural property arised from relations to the laws
of war.
The Restitution of Art and Cultural Goods – April 2020
Sydney CHICHE-ATTALI 12
Part I. The restitution of Art and Cultural Goods:
International and Regional legal framework

• The Lieber Code, signed by the US President Lincoln in 1863  one of the founding
documents for the laws of war .
• The Brussels Declaration, 1874  the reference document for the first Hague
Convention of 1899.
• The First Hague Conference in 1899  to review the Declaration on the Laws of
War.
The Hague Convention, 1899  Article 56 ; Article 47
• The Second Hague Convention in 1907
13
Sydney CHICHE-ATTALI

Case : Venus of
Cyrene
ITALY C/ LYBIA
14

• The Treaty of Versailles and the Treaty of Saint-Germain-en-Laye, 1919.
• The Washington Pact , 1935  the first multilateral treaty between the Americas
designed to protect some forms of cultural property both during war and peacetime.
Limited to artefacts dating to pre-Colombian and colonial times.
• Treaties signed at the end of World War II  Convention adopted in 1952, Germany
undertook to establish an agency to search for, recover and restitute cultural
property.
15

B - The 1954 Hague Convention for the Protection of Cultural Property in the
Event of Armed Conflict and its second protocol of 1999
• First international instrument on the protection of cultural heritage opened to
ratification by any State, as it is not limited to a specific region or continent.
16

➤ Definition of cultural property under 3 classes :
 Movable or immovable property of great importance to the cultural heritage ;
 Buildings whose main and effective purpose is to preserve or exhibit movable cultural
property ;
 Centres containing monuments.
17

18
➤ Prohibitions :
 Targeting and attacking cultural property unless it becomes a military objective ;
 Exposing cultural property to damage by using it for military purposes ;
 Launching an attack that may be expected to cause incidental damage to cultural property;
 Making cultural property the object of reprisals, and the misuse of the distinctive emblem.
➪ Important - Article 4(3) of the 1954 Hague Convention  prohibits theft, pillage and
misappropriation of cultural property.

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1. Belligerent occupation
• International law imposes certain duties on the occupying power
• Articles 1−5 of the First Protocol require the High Contracting Parties to :
- Prevent the export of cultural property
- Seize cultural property either directly or indirectly imported into its territory if it is exported from
an occupied territory.
- Return the property to the authorities of the territory previously occupied at the end of hostilities.
- Pay a compensation to the purchaser in good faith of the cultural property that has to be returned
to the previously occupied territory

Case : IRAK
AGAINST KUWAIT
20
DAI at KNM Post-Invasion 1990
DAI at KNM Burned During Invasion
1990

21
➤ Willingness to strengthen the protection of cultural property in the event of armed conflict.
➤ Adoption of the Second Protocol to the Hague Convention in 1999 ; entered into force in 2004.

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2. Serious violations
➤ Chapter IV of the Second Protocol to the 1954 Hague Convention entitled ‘Serious violations’ lists
various actions as war crimes.
➤ In particular  theft, pillage or misappropriation of cultural property protected under the
Convention a crime through violation of the Convention or the Second Protocol.
➤ The appropriate penalty is decided by national lawmakers.
➤ They shall afford the greatest measure of mutual legal assistance (MLA) .

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C - The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit
Import, Export and Transfer of Ownership of Cultural Property
• An international legal tool that could be applicable in times of peace.
• Adoption of the Convention in 1970 by the UNESCO General Conference
➤ 3 main pillars
- Prevention
- Return and restitution
- International cooperation
➤ Not a self-executing tool.

• Fight against illicit trafficking ⇨ generally associated with return and restitution
cases.
• Preventive measures ⇨ the most powerful and effective techniques.
• The 1970 UNESCO Convention ⇨ definition of cultural and even natural property :
fauna, archaeological items, stamps, furniture, musical instruments, paintings and
many other type of cultural objects.
24

• States Parties undertake to put a stop to the
illicit import, export and transfer of ownership
of cultural property and to cooperate with one
another.
• 3 different forms of obligations based on the
role of a country in the international circulation
of cultural property :
□ Source country
□ Transit country
□ Destination country
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• Article 3 of the 1970 UNESCO Convention
 import, export or transfer of ownership of
cultural property effected contrary to the
provisions of the Convention are illicit.
• Criminalizing the import when the export
cannot be proven legal may provide a
functional solution to implementation.

● Drafting legislation on the prevention of
the illicit import, export and transfer of
ownership of cultural property;
● Establishing and updating the national
inventory of protected cultural heritage;
● Promoting the development of museums,
archives, etc.;
26
The 1970 UNESCO Convention  all States Parties to set up one or more national services for the
protection of cultural heritage to contribute to:
● Arranging the supervision of the
archaeological excavations and protecting
the archaeological sites;
● Raising awareness through educational
measures;
● Ensuring that publicity is given to the
stolen or disappeared cultural property.

➤ The Export Certificate
● It must accompany the cultural
property designated by the national
regulation when leaving the country of
origin.
● It requires a prohibition on the export of
protected cultural property that is not
accompanied by an export certificate
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➤ Example - EU export certificate
3 types of export licences
- Standard Licence
- Specific Open Licence
- General Open Licence

➤ National legislation  export restrictions and the issuance of export certificates / temporary
permission documents to control the flow of cultural property crossing borders.
➤ States Parties the necessary measures to prevent museums and similar institutions from
acquiring cultural property that has been illegally exported from another State.
29

● The Market Reduction Approach (MRA)
● A due diligence principle
● The the return and restitution procedures of cultural property
30

Case :
France, Egypt and
Egyptian artefacts
31
France handed over the artefacts to Egypt in October 2017.

Case :
Jiroft – Iran
32Jiroft Cultural Vase

● Article 7 (b)(ii) of the 1970 UNESCO Convention foresees a ‘just compensation’ for the ‘bona
fide purchaser’ but it does not describe any criteria for one to be considered in good faith.
33

● UNESCO Convention 1970  States Parties have
to adopt penal or administrative sanctions for
violations of an export prohibition or for an
import of a cultural property that is stolen from a
museum or similar institution.
● Education, information and vigilance.
● States Parties oblige art dealers to keep records
on the artefacts they sell, including information
on the origin, by applying penal or administrative
sanctions for failure to do so.
34
● The States Parties - 1970 Convention thus undertake:
- To prevent the transfer of ownership of cultural
property likely to promote illicit export
- To ensure that their competent services cooperate
to return the cultural property
- To admit actions for the return of the lost or stolen
cultural property on behalf of the rightful owner;
- To recognize the right of a State Party to declare
certain cultural property as inalienable.

Case :
Peru Vs. Johnson
35
Moche Archaeological Objects

1. How is the 1970 UNESCO Convention governed ?
The 1970 UNESCO Convention is governed by its statutory organs :
◉ ‘the Meeting of States Parties to the UNESCO Convention on the Means of Prohibiting
and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property’
◉ ‘the Subsidiary Committee’
● The Meeting of States Parties provides strategic orientations.
● In 2012  a monitoring body on the implementation of the Convention.
36

2. Operational Guidelines of the 1970 UNESCO Convention
● The Operational Guidelines  to strengthen the implementation of the Convention.
● The drafting or revision of national legislation on cultural heritage protection.
● Due diligence, return and restitution of cultural property, online sales and auctions, import
and export prohibition
37

The Intergovernmental Committee for Promoting the Return of Cultural Property to its
Countries of Origin or its Restitution in case of Illicit Appropriation (ICPRCP)
● This Committee is composed of 22 members states  responsible for example for :
1) Seeking ways and means of facilitating bilateral negotiations for the restitution or return
of cultural property
2) Promoting multilateral and bilateral cooperation
3) Encouraging the necessary research and studies
38

Case :
Dat-Hamin Stele
39
Stolen South Arabian stela returned to Yemen by
Phoenix Ancient Art in 2004

Canon Tables –
Western Prelacy of
the Armenian
Apostolic Church of
America and J. Paul
Getty Museum
40

Achaemenid
Limestone Relief –
Iran v. Berend
41

42
● Private law
● Attempting to change the behaviours of the actors in the market, including the
buyers.
● Article 3(1) of the 1995 UNIDROIT Convention according to which the possessor
of a stolen cultural object must return it.
● A self-implementing tool which combines the main principles of civil and common
law systems.
D - The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural
Objects

● Article 3(2) of the 1995 UNIDROIT Convention clearly establishes that all cultural
objects that have been unlawfully excavated or lawfully excavated but unlawfully
retained are stolen.
● Article 5(3) of the 1995 UNIDROIT Convention requires the competent authority
of the State where it is held to order the return of said artefact.
➤ The Question of the applicable Law : The lex situs / The lex originis rule
43

● Problem  differing national private law systems.
● Example : a good faith purchaser is protected in the civil law system, whereas the
common law system does not grant such recognition and protection.
● The 1995 UNIDROIT Convention blends the principles of common and civil law
systems concerning the protection of good faith purchasers or the issue of
‘title’.
➤ Remedy : the Convention introduced the now much-used concept of ‘due
diligence’.
44

● Article 3
The possessor of a cultural object which has
been stolen shall return it.
● Article 4
(1) The possessor of a stolen cultural object
required to return it shall be entitled, at the
time of its restitution, to payment of fair and
reasonable compensation provided that the
possessor neither knew nor ought reasonably
to have known that the object was stolen and
can prove that it exercised due diligence
when acquiring the object.
45
(4) In determining whether the possessor exercised
due diligence, regard shall be had to all the
circumstances of the acquisition, including the
character of the parties, the price paid, whether the
possessor consulted any reasonably accessible
register of stolen cultural objects, and any other
relevant information and documentation which it
could reasonably have obtained, and whether the
possessor consulted accessible agencies or took any
other step that a reasonable person would have
taken in the circumstances.

● The UNIDROIT Convention obliges the individual to prove that he/she has
shown all possible efforts at the time of acquisition to ensure that the artefact in
question was not of illicit origin.
● Problem  According to Article 7(b)(ii) of the 1970 UNESCO Convention, only a
State Party can claim the return of an artefact and this must be carried out
through a set of ‘diplomatic channels’.
➤ Remedy: Article 3 of the 1995 UNIDROIT Convention, which regulates the
restitution claims of stolen artefacts, does not refer to ‘Contracting States’ of
the Convention but to a ‘claimant’.
46

● Problem  The time limitations for international claims set out in civil or property laws vary from
one country to another.
➤ Remedy: the 1995 UNIDROIT Convention set time limitations.
• According to Article 3 of the Convention, a claim for restitution must be made within three years’
time from the moment the claimant discovers the location of the cultural object and in any case
within a period of fifty years from the moment of theft.
• For artefacts that belong to archaeological sites and public collections  3 years from the moment
when the claimant discovers the location of the cultural object.
• The 1995 UNIDROIT Convention is not retroactive.
47

● State Parties are 47, and this Convention has an important influence.
● National legislation of some States
● Regional regulations
48

E - United Nations Security Council resolutions
1. UN Security Council Resolution 1483 (2003)
● 1990 : the Security Council adopted Resolution 66199 under Chapter VII of the UN
Charter to implement international sanctions on Iraq.
● The Council decided to block the import of all commodities originating in Iraq or
Kuwait.
49

● The sanctions  lifted by the UNSC Resolution 1483 in 2003, excluding the arms
embargo and the prohibition on import of cultural property originating in Iraq that
was exported illegally from Iraq after 6 August 1990.
● The second paragraph of Article 3 of Regulation 1210/2003 requires proof of the date
of export.
● Burden of proof  holder/possessor.
50

Case :
Hobby Lobby
51
Cuneiform Tablets and Ancient Clay Bullae

2. UN Security Council Resolution 2199 (2015)
52
• Chapter VII of the UN Charter,
condemns the destruction of cultural
heritage in Iraq and Syria, particularly
by ISIL (Islamic State of Iraq and the
Levant) and ANF (Al-Nusra Front).
• Looting and smuggling of cultural
heritage items from archaeological
sites, museums, libraries, archives, and
other sites in Iraq and Syria.
• The Resolution obliges all UN member states to
take appropriate measures to prevent the trade in
Iraqi and Syrian cultural property and other items
of archaeological, historical, cultural, rare,
scientific and religious importance illegally
removed from Iraq since 6 August 1990 and from
Syria since 15 March 2011.
➤ Remember – Even if a Syrian or Iraqi artefact
does not fall within the scope of the resolution,
this does not necessarily indicate that the
artefact was exported legally.

• Mandatory measures imposed on UN
member states.
• Customary law.
• EU Regulation 1332/2013 prohibits the
import, export and transfer of Syrian
cultural goods, where there are grounds to
suspect that they have been removed
without the consent of their legitimate
owner or in breach of Syrian or
international law.
53
• The prohibition applies unless it is ‘demonstrated’
that the artefact was exported from Syria prior to
9 May 2011 ; or that the goods are being safely
returned to their legitimate owners.
• If the holder/possessor cannot provide any
document and the investigative authority cannot
find any evidence which indicates a legal export
from Syria before 9 May 2011, the prohibition
applies.

3. UNSC Resolution 2347 (2017)
● First resolution adopted by the UN Security Council on safeguarding cultural heritage in armed
conflict.
● 4 dimensions :
1) to mainstream all international efforts by various organizations ;
2) to identify offences relating to tangible cultural heritage during armed conflict ;
3) to encourage the UN member states to propose listings of ISIL, Al -Qaida and associated;
individuals, groups, undertakings and entities involved in the illicit trade in cultural property ;
4) to encourage member states to adopt preventive measures
54

● Online sales of cultural artefacts taking place under their jurisdiction may be
contributing to the funding of terrorist acts.
● Directing unlawful attacks under certain circumstances may constitute a war crime.
● Member states have to take appropriate measures to counter illicit trafficking of
cultural property originating in countries in situations of armed conflict.
● Paragraph 9 of UNSC Resolution 2347 (2017) urges member states to introduce
effective measures.
55

 Preventive measures :
• The creation of digitized and accessible inventories and databases for stolen goods;
• The contribution to other existing databases, such as the UNESCO and INTERPOL databases;
• The establishment of standards for museums and the art market, such as provenance
certifications and due diligence;
• The sharing of lists of cultural sites under terrorist control; the development of education and
awareness-raising activities;
• The creation of educational programmes on the protection of cultural heritage.
56

F - The European Union legislation on the import, export and return of cultural property
57
• The Treaty on the Functioning of the European Union in its Article 36  ‘national
treasures’ : properties that possess artistic, historic or archaeological value.
• Rights of member states to prohibit or restrict imports and exports of national
treasures.

58
The EU developed legislation to prevent the illicit trade in cultural property:
• Council Regulation (EC) No 116/2009133 on the export of cultural goods and the
European Parliament and
• Council Directive 2014/60/EU, which is a recast of the Directive 93/7/EEC134
on the Return of Cultural Objects Unlawfully Removed from the Territory of a
member state.
• The new EU Regulation 2019/880, of June 2019, on the introduction and the
import of cultural goods

1. Council Regulation (EC) No 116/2009 on the export of cultural goods
● Issuance of export certificates for national cultural property to be exported outside
the EU is required.
● 3 different kinds of export licenses :
■ standard,
■ specific open
■ general open.
● 15 categories of national cultural property are listed in Annex 1 of the Regulation.
59

2. European Parliament and Council Directive 2014/60/EU
● 1993  the EU adopted Directive 93/7/EEC137 on the return of cultural objects
unlawfully removed from the territory of a member state.
● Shortcomings in the Directive’s implementation.
● The Council adopted a recast text which became Directive 2014/60/EU.
60

3. The new EU Regulation 2019/880, of June 2019 on the introduction and the import
of cultural goods
● The EU Regulation 2019/880 became Law  strict import limitations of ancient art,
books and manuscripts and antiques into the European Union.
● Objective  to ensure the prevention of terrorist financing and money laundering
through the sale of pillaged cultural goods to buyers in the Union.
● Certain imports of cultural goods are subject to uniform controls upon their entry
into the customs territory of the Union.
61

Which Objects are Concerned?
● Cultural goods from East and Southeast Asia, Russia, Middle East, South and Central America,
Africa and Australia.
● Products of archaeological excavations or discovery as well as elements of artistic or historical
monuments or archaeological sites which are more than 250 years old (considered high-risk)
● Other items which are more than 200 years old and have a minimum financial value of EUR 18
000 (indicatively, ancient coins, paintings, sculptures, prints, lithographs, rare manuscripts, old
books etc.) which are considered of lower-risk.
62

Import License
● For high-risk objects.
● Application to the competent authority of the importing member state via a centralized
electronic system.
● The importer will have to provide evidence that the object has been exported from the
country where it was created or discovered in accordance with the laws of that country.
● Or provide evidence of the absence of such laws at the time they were taken out of its
territory.
63

Importer Statement
● Lower-risk objects
● An Importer Statement to be submitted via the same centralized electronic system.
● The importer will have to provide a standardized description of the object in question.
➤ A few paradoxes
64

Part II
II. Advice in
preparation for your
future careers
65

II. Advice in preparation for your future careers
66
A – Due diligence / Due care
• Steps that must be taken by a buyer to ensure that the cultural property he/she wishes to buy has
the necessary legal documentation.
• A prerequisite by legal authorities for granting the ‘good-faith’ qualification in the case of a claim.
• Due diligence implies all the necessary verifications regarding the legal provenance of a cultural
object.
• The issue of provenance is one of the most important concepts.
• People and organisations  should apply high ethical standards of due diligence.

67
• UNIDROIT 1995 Convention  to change the
behaviours of all actors involved ; in
particular the buyer.
• Article 10 - EU Directive 2014/60/UE -
mention of due diligence.
 Legal importance of the proven practice of
due diligence :
- Good faith
- Potential innocence of the purchaser
• International codes of ethics or conducts
provide provisions on due diligence  the
ICOM Code of Ethics for Museums.
• International guidelines on due diligence :
- the International Association of Dealers in
Ancient Art (IADAA),
- the International Foundation for Art Research
(IFAR) or
- the Basel Institute on Governance.

68
2 important questions :
1) How is due diligence exercised?
2) How can it be determined whether due diligence has been exercised?
 The criteria for exercising due diligence would be used by a judge in his/her
questions to the claimant of the ‘good-faith’ title in order to reach a just decision.
A number of elements are listed in order to inform the potential buyer of the steps to take
before buying and to help the judge to determine whether due diligence has been
exercised or not at the time of acquisition.

69
 Indicators in the 1995 UNIDROIT Convention :
• The character of the parties
• The price paid,
• Whether the possessor consulted any reasonably accessible register of stolen cultural
objects, and any other relevant information and documentation that they could have
reasonably obtained, and
• Whether they consulted accessible agencies or took any other step that a reasonable
person would have taken in the given circumstances

Thank
you !
Contact :
Sydney CHICHE-ATTALI, Avocat à la Cour
sydney.chiche-attali@pierratavocats.com
Tél : 01.53.63.29.40 / Fax : 01.42.22.34.71
91, Boulevard Raspail – 75006 Paris
www.pierratavocats.com
70

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