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The Circulation of Art and Cultural Goods - Training - 8th & 9th December 2019 - Qatar National Library - Sydney CHICHE-ATTALI

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  1. 1. THE CIRCULATION OF ART AND CULTURAL GOODS LEGAL ASPECTS AND DUE DILIGENCE Sydney CHICHE-ATTALI, Lawyer Pierrat & Associés Law Firm Training - 8th & 9th December 2019 Qatar National Library 1
  2. 2. Introduction 2 • 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. • Ex : The « Gurlitt Case »
  3. 3. 3 • Recently at stake : stolen cultural property in Irak and Syria by terrorist group • Terrorist groups (ISIS) finance themselves through the illegal art market. • Cultural goods are put on sale in auction houses in Europe and internationally. 3
  4. 4. 4 • The cross-border character of restitution claims implies :  Additional costs for claimants and purchasers  Several national jurisdictions with differing rules  Fragmented and incomplete international and European legal instruments 4 • 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
  5. 5. 5 • 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 5
  6. 6. 66 • 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
  7. 7. 77  Focus on public international law  Small exceptions of private law : ◉ UNIDROIT Convention ◉ EU Regulation 1215/2012, with its Article 7(4) referring to civil claims for the recovery of a cultural object.  Legal uncertainty in cases
  8. 8. CONTENT 8 I. The circulation of Art and Cultural Goods: International and Regional Legal Framework II. The bans on the sale of certain materials III. Advice for your future acquisitions: due diligence and tools The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  9. 9. PART I 9 I. The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  10. 10. 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 Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI 10 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework
  11. 11. • 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  the Declaration on the Laws of War. • The Hague Convention, 1899  Article 56 + Article 47 • The Second Hague Convention in 1907 11 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  12. 12. Case : Venus of Cyrene ITALY C/ LYBIA 12 The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  13. 13. • 1919 : 2 Treaties : o The Treaty of Versailles, o The Treaty of Saint-Germain-en-Laye, • 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. 13 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  14. 14. 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. • Ratified by the Qatar in 1973. 14 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  15. 15. ➤ 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. 15 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  16. 16. 16 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI ➤ 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.
  17. 17. 17 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI • 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
  18. 18. Case : IRAK AGAINST KUWAIT 18 DAI at KNM Post-Invasion 1990 DAI at KNM Burned During Invasion 1990 The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  19. 19. 19 ➤ 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. • Individual criminal responsibility application • Illicit trafficking of cultural property and excavations in an occupied territory • Prohibition of archaeological excavation in an occupied territory ⇨ Ratified by the Qatar the 4 September 2000. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  20. 20. 20 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI - 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 : imprisonment ➤ They shall afford the greatest measure of mutual legal assistance (MLA) .
  21. 21. 21 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI 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 ⇨ Accepted by the Qatar the 20 April 1977 ➤ Not a self-executing tool.
  22. 22. • 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. 22 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  23. 23. ➤ Remember : National legislation should include a clear definition of cultural property as well as provisions on state ownership. The Qatari Law No. 2 of 1980 on Antiquities : Article 1 « Antiquities are deemed to include all monuments of civilizations, ruins of past generations and movable or immovable discoveries related to arts, science, ethics, morals doctrines, daily life, and public incidents or otherwise, with a history of forty years or more, provided that such monuments are of artistic or historical value. In accordance with Article 5 below, antiquities are deemed to be public assets owned by the State unless their allocation is abolished pursuant to the provisions herein. » 23 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  24. 24. Article 4 « The maintenance and preservation of antiquities shall be assigned to Qatar Museum Authority (QMA), which shall undertake the discovery, registration, maintenance and preservation of properties and patterns of antiquities. Antiquities shall be registered by a resolution of the QMA board of trustees. » 24 Article 5 « All movable and immovable antiquities existing above or belowground are deemed to be public property of the State. Claims of ownership shall be according to the provisions of this law» The Qatari Law No. 2 of 1980 on Antiquities Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  25. 25. • States Parties undertake : o to put a stop to the illicit import, export and transfer of ownership of cultural property and o 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 25 • 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. • The Solution : Criminalizing the import when the export cannot be proven legal may provide a functional solution to implementation. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  26. 26. ● 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. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  27. 27. ➤ 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 27 ➤ Example - EU export certificate 3 types of export licences - Standard Licence - Specific Open Licence - General Open Licence Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  28. 28. 28
  29. 29. ➤ National legislation  export restrictions and the issuance of export certificates / temporary permission documents to control the flow of cultural property crossing borders. ➩ Qatar Law No. 2 of 1980 on Antiquities Article 28 The export of antiquities is strictly prohibited. Movable antiquities may be exported, however, based on a decision of the board of trustees of QMA in cases where such export does not affect the archaeological or artistic heritage of Qatar. An application to export antiquities shall be submitted on a special form mandated by QMA. However, QMA expressly reserves the right to grant or reject the application and to purchase any of the antiquities intended for export at the prices specified by the applicant. 29 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  30. 30. ➤ States Parties  keep museum clean and the necessary measures to prevent museums and similar institutions from acquiring cultural property that has been illegally exported from another State. ➩ Qatar Law No. 2 of 1980 on Antiquities Article 29 Antiquities imported to Qatar without an export license from the country of origin shall be held by the customs, post, security and other authorities. Such items shall subsequently be delivered under an official record to QMA, which shall investigate the matter accordingly. If the investigation establishes that the antiquities have, with the importer's knowledge, been smuggled or otherwise taken out of the country of origin in violation of prevailing laws, they shall be administratively confiscated and considered as property of the State. 30 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  31. 31. ● The Market Reduction Approach (MRA) ● A due diligence principle ● The the return and restitution procedures of cultural property ○ But limits: the artefacts known and recorded 31 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  32. 32. Case : France, Egypt and Egyptian artefacts 32 France handed over the artefacts to Egypt in October 2017. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  33. 33. Case : Jiroft – Iran 33 Jiroft culture bronze vase The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  34. 34. ● 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. ● Qatar Law No. 2 of 1980 on Antiquities Article 29 Such items may be returned to the country of origin based on reciprocity arrangements. However, if it is established that the importer acted in good faith, the board of trustees may, upon fair compensation to the importer, appropriate the items to the State. 34 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  35. 35. ● 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. 35 ● 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. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  36. 36. Article 1 Antiquities are deemed to include all monuments of civilizations, ruins of past generations and movable or immovable discoveries related to arts, science, ethics, morals doctrines, daily life, and public incidents or otherwise, with a history of forty years or more, provided that such monuments are of artistic or historical value. In accordance with Article 5 below, antiquities are deemed to be public assets owned by the State unless their allocation is abolished pursuant to the provisions herein. 36 ➤ Article 13 – Each State has to clarity of the definition of State ownership in national legislation is crucial (ex : Italy, Greece, China) ➩ Qatari Law No. 2 of 1980 on Antiquities Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  37. 37. Article 4 The maintenance and preservation of antiquities shall be assigned to Qatar Museum Authority (QMA), which shall undertake the discovery, registration, maintenance and preservation of properties and patterns of antiquities Antiquities shall be registered by a resolution of the QMA board of trustees 37 Article 5 All movable and immovable antiquities existing above or belowground are deemed to be public property of the State. Claims of ownership shall be according to the provisions of this law ➩ Qatari Law No. 2 of 1980 on Antiquities Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  38. 38. Case : Peru Vs. Johnson 38 Moche Archaeological Objects The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  39. 39. - 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, every 2 years ● In 2012  establishment a monitoring body on the implementation of the Convention. 39 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  40. 40. - Operational Guidelines of the 1970 UNESCO Convention ● The Operational Guidelines  to strengthen the implementation of the Convention. ● Useful in 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 40 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  41. 41. 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 41 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Libray Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  42. 42. Case : Dat-Hamin Stele 42 Stolen South Arabian stela returned to Yemen by Phoenix Ancient Art in 2004 The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Libray Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  43. 43. Canon Tables – Western Prelacy of the Armenian Apostolic Church of America and J. Paul Getty Museum 43 The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  44. 44. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - QNL Sydney CHICHE-ATTALI 44 D - The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects● Private law ● Attempting to change the behaviours of the actors in the market, including the buyers. ● Article 3(1) of the 1995 UNIDROIT Convention :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. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework
  45. 45. ● 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 45 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  46. 46. Achaemenid Limestone Relief – Iran v. Berend 46 A fragment of a bas-relief from the city of Persepolis, dating from the 5th Century B.C.E The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  47. 47. ● 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 mixes 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’. 47 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  48. 48. Case : University of Geneva 48 The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Libray Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI Tell Kazel, Maurice Dunand à l’œuvre sur le tertre en 1961 Fonds Dunand, sans inventaire Temple aux Obélisques de Byblos, Fonds Dunand, inv. AD 2537
  49. 49. ● 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. 49 (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. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  50. 50. ● 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. ➤ 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’. - enables individuals not only the States 50 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  51. 51. ➤ the 1995 UNIDROIT Convention set time limitations. • According to Article 3 of the Convention, a claim for restitution must be made within 3 years’ time from the moment the claimant discovers the location of the cultural object and in any case within a period of 50 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. 51 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  52. 52. ● The Qatar has not ratified the 1995 UNIDROIT Convention  State Parties are 47, and this Convention has a great influence. ● National legislation of some States : Switzerland, Holland, etc. ● Regional regulations : EU 52 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  53. 53. 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. 53 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  54. 54. ● The sanctions were 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. 54 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  55. 55. Case : Hobby Lobby 55 Cuneiform Tablets and Ancient Clay Bullae The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  56. 56. 2. UN Security Council Resolution 2199 (2015) 56 • 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. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  57. 57. • 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. 57 • 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. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  58. 58. 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 58 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  59. 59. ● 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. 59 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  60. 60.  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. 60 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  61. 61. F - The European Union legislation on the import, export and return of cultural property 61 • 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. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  62. 62. 62 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 • 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 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  63. 63. 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. 63 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  64. 64. 64
  65. 65. 65
  66. 66. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework Financial thresholds applicable to certain categories under A (in euro) ● Whatever the value ● Archaeological objects ● Dismembered monuments ● Incunabula and manuscripts ● Archives ● 15 000 ● Mosaics and drawings ● Engravings ● Photographs ● Printed maps ● 30 000 ● Watercolours, gouaches and pastels 66
  67. 67. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework Financial thresholds applicable to certain categories under A (in euro) ● 50 000 ● Statuary ● Books ● Collections ● Means of transport ● Any other object ● 150 000 ● Pictures 67
  68. 68. 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. 68 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  69. 69. 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. ● Main 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. 69 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  70. 70. 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.) (considered of lower-risk) 70 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  71. 71. 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. 71 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  72. 72. 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 72 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  73. 73. Part II II. The bans on the sale of certain materials 73
  74. 74. II. The bans on the sale of certain materials 74 • International efforts: • The Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) was drafted in 1963. Opened for signature in 1973 ➩ Qatar had acceded to the CITES on 2001. • 182 other Parties • Incorporation into Parties’ domestic legislation • CITES prohibited trade in new ivory from all elephant species since 1990 “at the latest”. • CITES expressly allows parties to adopt stricter domestic measures. A – The Ivory Ban The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  75. 75. II. The bans on the sale of certain materials 75 United States Legislation - US regulations do not restrict personal possession of ivory - Executive Order 1364819 in July 2013 - July 6, 2016  a near-total ban on commercial trade in African elephant ivory. ▶︎ Exceptions : certain antiques ; minimis objects ; interstate commerce The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  76. 76. II. The bans on the sale of certain materials 76 UK Legislation - Ivory Act 2018 - Ban on “dealing” in elephant ivory - To export it from or import into the UK for sale or hire ▶︎ Exceptions : objects containing less than 10% of ivory by volume, made prior to 1947 ; “rarest and most important” objects pre 1918 ; musical instruments pre-1975 that contain less than 20% of ivory by volume ; portrait miniatures pre-1918.  It will affect collectors wishing to sell ivory items and their collection. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  77. 77. II. The bans on the sale of certain materials 77 • The provisions of the CITES have to be implemented uniformly in all EU Member States. • The EU adopted Regulation 338/97 governing the ivory trade intra-EU trade and commercial export from the EU : pre-1947 worked ivory items can be traded without an authorisation certificate. • The European Union is considering tightening restrictions to the ivory trade within EU Member States. • Report in January 2019  to focus on export of worked ivory from the EU, ivory imports into the EU, Intra EU trade in ivory. • Decrease of EU traded ivory. The Future ban of ivory in EU The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  78. 78. II. The bans on the sale of certain materials 78 ➩ Qatar has joined the CITES in 2001. • Legislation - Law No. (50) of 2006, for regulation of trade - Management Authority  responsible agency in regulation of trade in all wildlife species. Ivory status in Qatar • Border control - Qatar CITES Management Authority  control of import and export of wildlife specimens through the airport , sea and land ports. - Hamad International Airport, Abu Samra Passageway , Doha Sea Port. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  79. 79. II. The bans on the sale of certain materials 79 • Confiscations  Reported seizures of ivory : 1- Five polished small elephant tusks of different sizes, arrived from Sudan without CITES permit in 2005. 2- Thirtee specimens of tourist souvenirs made of ivory, arrived from Sudan without CITES permit in 2005. 3- Ten specimens of polished elephant ivory arrived from Sudan without CITES permit in 2006. 4- Four specimens of worked elephant ivory arrived from Lebanon without CITES permit in 2006. 5- Two specimens of worked elephant ivory arrived from Thailand without CITES permit in 2008. 6- 156 kilograms of worked ivory arrived from Mozambique on transit to Vietnam without CITES permit in 2014. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  80. 80. Part III III. Advice for your future acquisitions: due diligence and tools 80
  81. 81. 81 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. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  82. 82. 82 • 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. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  83. 83. 83 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. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  84. 84. 84  Indicators in the 1995 UNIDROIT Convention : 1. The character of the parties 2. The price paid, 3. 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 4. Whether they consulted accessible agencies or took any other step that a reasonable person would have taken in the given circumstances The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  85. 85. Case : Hobby Lobby 85 Cuneiform Tablets and Ancient Clay Bullae The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  86. 86. 86 • In 2011  ICOM created the ICOM International Observatory on Illicit Traffic in Cultural Goods. • A glossary, good practices and case studies were also developed and shared publicly through the website of the Observatory • Chapter on due diligence/ good practices. • A checklist is provided  the basis of a due diligence exercise. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  87. 87. 87  The due diligence process • To use guidelines in conjunction with other national and international standards and rules. • To reject an item if there is any suspicion about it, or about the circumstances surrounding it. • Guidelines application  acquisitions and loans. • Necessity to inform the vendor, donor, or lender that the purchaser is unable to acquire or borrow items unless due diligence has been satisfactorily undertaken. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  88. 88. 88 1. First evaluation and documentation to be requested : • To verify the market price, the identity of the vendor/donor, its qualification, the reliability of his organisation. • To check the provenance of the item. • The account of the provenance of the object should be supported by documentary evidence. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  89. 89. 89 The different types of documents : - Export licence from country of origin - Publication in a reputable source (annotated catalogue, exhibit or auction catalogues, etc.) - Will / inventory - Certificate of authenticity - Export documents - Photographic evidence - Family correspondence - Excavation field notes Etc. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  90. 90. 90 Fake provenance documents  Fake documents is a common practice of traffickers.  3 forms of falsified provenance information exist :  producing physical documents, such as false export certificates or customs documents;  creating an ownership history which dates back to times prior to scientific excavations or before export bans were criminalized by the national law of the country of origin;  misinforming customs authorities on the origin or content of the artefacts when entering a country. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  91. 91. Case : Case Dancing Shiva 91 The Dancing Shiva statue on display at the National Gallery of Australia. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  92. 92. Case : United States v. One Ancient Mosaic 92 The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Libray Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI This photograph was taken by FBI after the mosaic was seized pursuant to a federal warrant.
  93. 93. 93 Fake export certificates/Falsified customs declarations • Export prohibitions or restrictions are foreseen in national legislations. • EU member states’ export procedures are regulated by Council Regulation (EC) No 116/2009 and 1081/2012. • A similar initiative was also undertaken by UNESCO and the WCO.  Objective : harmonize the components of an export document - The UNESCO-WCO Model Export Certificate for Cultural Objects.  But there are still several different types of export certificates in circulation. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  94. 94. 94
  95. 95. 95
  96. 96. 96
  97. 97. 97
  98. 98. 98
  99. 99. Case : Marble statue from Libya 99 Statue dating from 3rd century BC to be returned from the UK to Libya The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  100. 100. 100 2. Further examination: • To examine the item at first hand to determine several things. • Thorough examination of the object  aspect, marks, etc.  to determine if the objet has been illegally excavated, restored, taken from a larger item. • To determine if the object comes from an area subjected to illicit traffic.  Useful documentation : ICOM Red Lists The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  101. 101. Case : Jiroft – Iran 101 Jiroft culture bronze vase The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  102. 102. Case : ICOM Red List Yemen 102 The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  103. 103. 103 ◉ ICOM Red Lists – since 2000. - Database - Freely available in digital format - Identify objects at risk and prevent them from being illegally sold or exported. - Illustrate the categories of cultural goods most vulnerable to illicit traffic. - Area “at risk”  extreme diligence should be made. - To check the situation of the object regarding the legal framework of the country of origin. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  104. 104. 104 ☞ Database of National Cultural Heritage Law - UNESCO How to search the database ? 1. Enter the webpage https://en.unesco.org/cultnatlaws/list 2. Choose the category on which you want to conduct a search. You can search using the following criteria : - Field/Subcategory - Keyword - Type of document - Themes - Regions - Country - Year III. Advice for your future acquisitions: due diligence and tools
  105. 105. 105 ◉ INTERPOL • Illicit trafficking in cultural property is a transnational crime. • Centralizing the data available • Accessible to law enforcement agencies and other authorized users. • Useful for governmental officials : ○ An authority locates an artefact from its country in another country ○ The authority that monitors the circulation of cultural objects in its country finds a suspicious item ○ During investigations conducted by law enforcement agencies, a law enforcement authority may take advantage of the database during investigation processes  To check on INTERPOL and other databases of stolen cultural objects. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  106. 106. 106The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  107. 107. 107 ◉ The Art Loss Database http://www.artloss.com/en  Also useful to seek for the assistance of specialists from several individuals : experts, museums, universities, embassies, ICOM, UNESCO, national authorities, legal advisers, etc. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  108. 108. 108 3. Enhanced due diligence • When the provenance or the authenticity of the art object itself raises serious doubts. • Following efforts : - Obtaining additional independent expertise - Consulting expert committees and gathering second/further opinions - Checking of additional databases, registers and listings - Professional background check on the seller (previous art trade activities, information requests to law enforcement authorities, etc.) The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  109. 109. 109 ➢ Conflict of interest • Doubt regarding his/her professional independence • To disclose his commercial or financial relationship with all the parties involved in the transaction. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  110. 110. 110 ➢ Taking the right decision • Any doubt • Strongly recommended not to proceed with the acquisition • The ethical status might be acceptable in two cases : o The object has been legally exported, and an accurate examination of the object has been done o The ethical status is clear, but without any documentation • The decision to acquire the item is the full responsibility of the purchaser. • It is recommended that a file on the object be created and conserved in a safe place The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  111. 111. 111 ➢ Checklist for due diligence • This is not an official document. • An indication of the types of questions that could reasonably be asked • Heritage professionals should also be aware that record keeping in the field is constantly improving, The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  112. 112. 112 ◼︎ 1. First verifications  Do you feel that you are acquiring with confidence from a reputable source? Have you evaluated the account given by the vendor?  Verify the identity of the seller, its qualifications, its specialty and whether or not he or she belongs to a merchant’s association.  Make sure the price given corresponds to the current market price. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  113. 113. 113 ◼︎ 2. Initial examination of the object  Ask what was the last location of the object was and its country of origin.  Does it show signs of certain types of ingrained dust or dirt or has annotations (old labels, inscriptions or other marks) which may demonstrate it has been on display, used or stored as part of an older collection?  If it does carry such marks and labels, have you checked that they are not forged or, if genuine, transferred from other items?  Does it have a distinctive type of mount, mounting or binding that is likely to be from a particular period? The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  114. 114. 114  Has it been mended, partially restored or changed from its original condition (restoration work)? Can you tell from the restoration / conservation done on the object the period in which is was treated?  Check the item in published lost / stolen works of art databases (INTERPOL, Carabinieri…)  Are there any signs that the object has been recently excavated and thus more likely to be illicit?  Are there any signs that the object has come from a larger object or from a building or monument?  Check the ICOM Red Lists The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  115. 115. 115 ◼︎ 3. Further considerations  Does the item come from an area of the world which has experienced a significant amount of illicit excavation in recent years ?  Is the item from a category of objects considered `at risk’ such as certain sorts of African, Latin American and Asian artefacts?  Have you taken advice from experts in the field either in this country or from the country of origin? The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  116. 116. 116 ◼︎ 4. Documents to be requested  Request proof-of-provenance (annotated catalogues, exhibit or auction catalogues, inventory, and correspondence)  Ask if there is a certificate of authenticity  Request to see the export documents The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  117. 117. 117 ◼︎ 5. Precautionary measures to be taken when paying  Ensure that a correct and fully legal receipt has been provided by the seller  Ensure that the invoices, receipts, sale notes or extracts of public sale minutes mention the specifications that the professional has provided regarding the nature, the composition, the origin or the age of the sold object  Request that a picture be added to the object’s receipt  Pay by cheque or account-to-account transfer (credit card) ► Conclusion on Due diligence as a good practice : due diligence still remains a practice based on the good will, despite the existing legal and ethical framework. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  118. 118. 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 118

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The Circulation of Art and Cultural Goods - Training - 8th & 9th December 2019 - Qatar National Library - Sydney CHICHE-ATTALI

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  1. 1. THE CIRCULATION OF ART AND CULTURAL GOODS LEGAL ASPECTS AND DUE DILIGENCE Sydney CHICHE-ATTALI, Lawyer Pierrat & Associés Law Firm Training - 8th & 9th December 2019 Qatar National Library 1
  2. 2. Introduction 2 • 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. • Ex : The « Gurlitt Case »
  3. 3. 3 • Recently at stake : stolen cultural property in Irak and Syria by terrorist group • Terrorist groups (ISIS) finance themselves through the illegal art market. • Cultural goods are put on sale in auction houses in Europe and internationally. 3
  4. 4. 4 • The cross-border character of restitution claims implies :  Additional costs for claimants and purchasers  Several national jurisdictions with differing rules  Fragmented and incomplete international and European legal instruments 4 • 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
  5. 5. 5 • 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 5
  6. 6. 66 • 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
  7. 7. 77  Focus on public international law  Small exceptions of private law : ◉ UNIDROIT Convention ◉ EU Regulation 1215/2012, with its Article 7(4) referring to civil claims for the recovery of a cultural object.  Legal uncertainty in cases
  8. 8. CONTENT 8 I. The circulation of Art and Cultural Goods: International and Regional Legal Framework II. The bans on the sale of certain materials III. Advice for your future acquisitions: due diligence and tools The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  9. 9. PART I 9 I. The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  10. 10. 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 Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI 10 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework
  11. 11. • 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  the Declaration on the Laws of War. • The Hague Convention, 1899  Article 56 + Article 47 • The Second Hague Convention in 1907 11 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  12. 12. Case : Venus of Cyrene ITALY C/ LYBIA 12 The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  13. 13. • 1919 : 2 Treaties : o The Treaty of Versailles, o The Treaty of Saint-Germain-en-Laye, • 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. 13 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  14. 14. 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. • Ratified by the Qatar in 1973. 14 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  15. 15. ➤ 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. 15 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  16. 16. 16 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI ➤ 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.
  17. 17. 17 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI • 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
  18. 18. Case : IRAK AGAINST KUWAIT 18 DAI at KNM Post-Invasion 1990 DAI at KNM Burned During Invasion 1990 The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  19. 19. 19 ➤ 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. • Individual criminal responsibility application • Illicit trafficking of cultural property and excavations in an occupied territory • Prohibition of archaeological excavation in an occupied territory ⇨ Ratified by the Qatar the 4 September 2000. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  20. 20. 20 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI - 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 : imprisonment ➤ They shall afford the greatest measure of mutual legal assistance (MLA) .
  21. 21. 21 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI 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 ⇨ Accepted by the Qatar the 20 April 1977 ➤ Not a self-executing tool.
  22. 22. • 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. 22 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  23. 23. ➤ Remember : National legislation should include a clear definition of cultural property as well as provisions on state ownership. The Qatari Law No. 2 of 1980 on Antiquities : Article 1 « Antiquities are deemed to include all monuments of civilizations, ruins of past generations and movable or immovable discoveries related to arts, science, ethics, morals doctrines, daily life, and public incidents or otherwise, with a history of forty years or more, provided that such monuments are of artistic or historical value. In accordance with Article 5 below, antiquities are deemed to be public assets owned by the State unless their allocation is abolished pursuant to the provisions herein. » 23 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  24. 24. Article 4 « The maintenance and preservation of antiquities shall be assigned to Qatar Museum Authority (QMA), which shall undertake the discovery, registration, maintenance and preservation of properties and patterns of antiquities. Antiquities shall be registered by a resolution of the QMA board of trustees. » 24 Article 5 « All movable and immovable antiquities existing above or belowground are deemed to be public property of the State. Claims of ownership shall be according to the provisions of this law» The Qatari Law No. 2 of 1980 on Antiquities Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  25. 25. • States Parties undertake : o to put a stop to the illicit import, export and transfer of ownership of cultural property and o 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 25 • 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. • The Solution : Criminalizing the import when the export cannot be proven legal may provide a functional solution to implementation. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  26. 26. ● 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. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  27. 27. ➤ 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 27 ➤ Example - EU export certificate 3 types of export licences - Standard Licence - Specific Open Licence - General Open Licence Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  28. 28. 28
  29. 29. ➤ National legislation  export restrictions and the issuance of export certificates / temporary permission documents to control the flow of cultural property crossing borders. ➩ Qatar Law No. 2 of 1980 on Antiquities Article 28 The export of antiquities is strictly prohibited. Movable antiquities may be exported, however, based on a decision of the board of trustees of QMA in cases where such export does not affect the archaeological or artistic heritage of Qatar. An application to export antiquities shall be submitted on a special form mandated by QMA. However, QMA expressly reserves the right to grant or reject the application and to purchase any of the antiquities intended for export at the prices specified by the applicant. 29 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  30. 30. ➤ States Parties  keep museum clean and the necessary measures to prevent museums and similar institutions from acquiring cultural property that has been illegally exported from another State. ➩ Qatar Law No. 2 of 1980 on Antiquities Article 29 Antiquities imported to Qatar without an export license from the country of origin shall be held by the customs, post, security and other authorities. Such items shall subsequently be delivered under an official record to QMA, which shall investigate the matter accordingly. If the investigation establishes that the antiquities have, with the importer's knowledge, been smuggled or otherwise taken out of the country of origin in violation of prevailing laws, they shall be administratively confiscated and considered as property of the State. 30 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  31. 31. ● The Market Reduction Approach (MRA) ● A due diligence principle ● The the return and restitution procedures of cultural property ○ But limits: the artefacts known and recorded 31 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  32. 32. Case : France, Egypt and Egyptian artefacts 32 France handed over the artefacts to Egypt in October 2017. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  33. 33. Case : Jiroft – Iran 33 Jiroft culture bronze vase The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  34. 34. ● 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. ● Qatar Law No. 2 of 1980 on Antiquities Article 29 Such items may be returned to the country of origin based on reciprocity arrangements. However, if it is established that the importer acted in good faith, the board of trustees may, upon fair compensation to the importer, appropriate the items to the State. 34 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  35. 35. ● 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. 35 ● 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. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  36. 36. Article 1 Antiquities are deemed to include all monuments of civilizations, ruins of past generations and movable or immovable discoveries related to arts, science, ethics, morals doctrines, daily life, and public incidents or otherwise, with a history of forty years or more, provided that such monuments are of artistic or historical value. In accordance with Article 5 below, antiquities are deemed to be public assets owned by the State unless their allocation is abolished pursuant to the provisions herein. 36 ➤ Article 13 – Each State has to clarity of the definition of State ownership in national legislation is crucial (ex : Italy, Greece, China) ➩ Qatari Law No. 2 of 1980 on Antiquities Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  37. 37. Article 4 The maintenance and preservation of antiquities shall be assigned to Qatar Museum Authority (QMA), which shall undertake the discovery, registration, maintenance and preservation of properties and patterns of antiquities Antiquities shall be registered by a resolution of the QMA board of trustees 37 Article 5 All movable and immovable antiquities existing above or belowground are deemed to be public property of the State. Claims of ownership shall be according to the provisions of this law ➩ Qatari Law No. 2 of 1980 on Antiquities Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  38. 38. Case : Peru Vs. Johnson 38 Moche Archaeological Objects The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  39. 39. - 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, every 2 years ● In 2012  establishment a monitoring body on the implementation of the Convention. 39 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  40. 40. - Operational Guidelines of the 1970 UNESCO Convention ● The Operational Guidelines  to strengthen the implementation of the Convention. ● Useful in 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 40 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  41. 41. 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 41 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Libray Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  42. 42. Case : Dat-Hamin Stele 42 Stolen South Arabian stela returned to Yemen by Phoenix Ancient Art in 2004 The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Libray Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  43. 43. Canon Tables – Western Prelacy of the Armenian Apostolic Church of America and J. Paul Getty Museum 43 The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  44. 44. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - QNL Sydney CHICHE-ATTALI 44 D - The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects● Private law ● Attempting to change the behaviours of the actors in the market, including the buyers. ● Article 3(1) of the 1995 UNIDROIT Convention :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. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework
  45. 45. ● 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 45 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  46. 46. Achaemenid Limestone Relief – Iran v. Berend 46 A fragment of a bas-relief from the city of Persepolis, dating from the 5th Century B.C.E The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  47. 47. ● 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 mixes 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’. 47 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  48. 48. Case : University of Geneva 48 The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Libray Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI Tell Kazel, Maurice Dunand à l’œuvre sur le tertre en 1961 Fonds Dunand, sans inventaire Temple aux Obélisques de Byblos, Fonds Dunand, inv. AD 2537
  49. 49. ● 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. 49 (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. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  50. 50. ● 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. ➤ 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’. - enables individuals not only the States 50 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  51. 51. ➤ the 1995 UNIDROIT Convention set time limitations. • According to Article 3 of the Convention, a claim for restitution must be made within 3 years’ time from the moment the claimant discovers the location of the cultural object and in any case within a period of 50 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. 51 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  52. 52. ● The Qatar has not ratified the 1995 UNIDROIT Convention  State Parties are 47, and this Convention has a great influence. ● National legislation of some States : Switzerland, Holland, etc. ● Regional regulations : EU 52 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  53. 53. 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. 53 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  54. 54. ● The sanctions were 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. 54 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  55. 55. Case : Hobby Lobby 55 Cuneiform Tablets and Ancient Clay Bullae The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  56. 56. 2. UN Security Council Resolution 2199 (2015) 56 • 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. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  57. 57. • 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. 57 • 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. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  58. 58. 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 58 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  59. 59. ● 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. 59 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  60. 60.  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. 60 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  61. 61. F - The European Union legislation on the import, export and return of cultural property 61 • 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. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  62. 62. 62 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 • 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 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  63. 63. 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. 63 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  64. 64. 64
  65. 65. 65
  66. 66. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework Financial thresholds applicable to certain categories under A (in euro) ● Whatever the value ● Archaeological objects ● Dismembered monuments ● Incunabula and manuscripts ● Archives ● 15 000 ● Mosaics and drawings ● Engravings ● Photographs ● Printed maps ● 30 000 ● Watercolours, gouaches and pastels 66
  67. 67. Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework Financial thresholds applicable to certain categories under A (in euro) ● 50 000 ● Statuary ● Books ● Collections ● Means of transport ● Any other object ● 150 000 ● Pictures 67
  68. 68. 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. 68 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  69. 69. 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. ● Main 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. 69 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  70. 70. 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.) (considered of lower-risk) 70 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  71. 71. 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. 71 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  72. 72. 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 72 Part I - The circulation of Art and Cultural Goods: International and Regional Legal Framework The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  73. 73. Part II II. The bans on the sale of certain materials 73
  74. 74. II. The bans on the sale of certain materials 74 • International efforts: • The Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) was drafted in 1963. Opened for signature in 1973 ➩ Qatar had acceded to the CITES on 2001. • 182 other Parties • Incorporation into Parties’ domestic legislation • CITES prohibited trade in new ivory from all elephant species since 1990 “at the latest”. • CITES expressly allows parties to adopt stricter domestic measures. A – The Ivory Ban The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  75. 75. II. The bans on the sale of certain materials 75 United States Legislation - US regulations do not restrict personal possession of ivory - Executive Order 1364819 in July 2013 - July 6, 2016  a near-total ban on commercial trade in African elephant ivory. ▶︎ Exceptions : certain antiques ; minimis objects ; interstate commerce The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  76. 76. II. The bans on the sale of certain materials 76 UK Legislation - Ivory Act 2018 - Ban on “dealing” in elephant ivory - To export it from or import into the UK for sale or hire ▶︎ Exceptions : objects containing less than 10% of ivory by volume, made prior to 1947 ; “rarest and most important” objects pre 1918 ; musical instruments pre-1975 that contain less than 20% of ivory by volume ; portrait miniatures pre-1918.  It will affect collectors wishing to sell ivory items and their collection. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  77. 77. II. The bans on the sale of certain materials 77 • The provisions of the CITES have to be implemented uniformly in all EU Member States. • The EU adopted Regulation 338/97 governing the ivory trade intra-EU trade and commercial export from the EU : pre-1947 worked ivory items can be traded without an authorisation certificate. • The European Union is considering tightening restrictions to the ivory trade within EU Member States. • Report in January 2019  to focus on export of worked ivory from the EU, ivory imports into the EU, Intra EU trade in ivory. • Decrease of EU traded ivory. The Future ban of ivory in EU The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  78. 78. II. The bans on the sale of certain materials 78 ➩ Qatar has joined the CITES in 2001. • Legislation - Law No. (50) of 2006, for regulation of trade - Management Authority  responsible agency in regulation of trade in all wildlife species. Ivory status in Qatar • Border control - Qatar CITES Management Authority  control of import and export of wildlife specimens through the airport , sea and land ports. - Hamad International Airport, Abu Samra Passageway , Doha Sea Port. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  79. 79. II. The bans on the sale of certain materials 79 • Confiscations  Reported seizures of ivory : 1- Five polished small elephant tusks of different sizes, arrived from Sudan without CITES permit in 2005. 2- Thirtee specimens of tourist souvenirs made of ivory, arrived from Sudan without CITES permit in 2005. 3- Ten specimens of polished elephant ivory arrived from Sudan without CITES permit in 2006. 4- Four specimens of worked elephant ivory arrived from Lebanon without CITES permit in 2006. 5- Two specimens of worked elephant ivory arrived from Thailand without CITES permit in 2008. 6- 156 kilograms of worked ivory arrived from Mozambique on transit to Vietnam without CITES permit in 2014. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  80. 80. Part III III. Advice for your future acquisitions: due diligence and tools 80
  81. 81. 81 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. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  82. 82. 82 • 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. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  83. 83. 83 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. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  84. 84. 84  Indicators in the 1995 UNIDROIT Convention : 1. The character of the parties 2. The price paid, 3. 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 4. Whether they consulted accessible agencies or took any other step that a reasonable person would have taken in the given circumstances The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  85. 85. Case : Hobby Lobby 85 Cuneiform Tablets and Ancient Clay Bullae The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  86. 86. 86 • In 2011  ICOM created the ICOM International Observatory on Illicit Traffic in Cultural Goods. • A glossary, good practices and case studies were also developed and shared publicly through the website of the Observatory • Chapter on due diligence/ good practices. • A checklist is provided  the basis of a due diligence exercise. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  87. 87. 87  The due diligence process • To use guidelines in conjunction with other national and international standards and rules. • To reject an item if there is any suspicion about it, or about the circumstances surrounding it. • Guidelines application  acquisitions and loans. • Necessity to inform the vendor, donor, or lender that the purchaser is unable to acquire or borrow items unless due diligence has been satisfactorily undertaken. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  88. 88. 88 1. First evaluation and documentation to be requested : • To verify the market price, the identity of the vendor/donor, its qualification, the reliability of his organisation. • To check the provenance of the item. • The account of the provenance of the object should be supported by documentary evidence. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  89. 89. 89 The different types of documents : - Export licence from country of origin - Publication in a reputable source (annotated catalogue, exhibit or auction catalogues, etc.) - Will / inventory - Certificate of authenticity - Export documents - Photographic evidence - Family correspondence - Excavation field notes Etc. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  90. 90. 90 Fake provenance documents  Fake documents is a common practice of traffickers.  3 forms of falsified provenance information exist :  producing physical documents, such as false export certificates or customs documents;  creating an ownership history which dates back to times prior to scientific excavations or before export bans were criminalized by the national law of the country of origin;  misinforming customs authorities on the origin or content of the artefacts when entering a country. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  91. 91. Case : Case Dancing Shiva 91 The Dancing Shiva statue on display at the National Gallery of Australia. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  92. 92. Case : United States v. One Ancient Mosaic 92 The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Libray Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI This photograph was taken by FBI after the mosaic was seized pursuant to a federal warrant.
  93. 93. 93 Fake export certificates/Falsified customs declarations • Export prohibitions or restrictions are foreseen in national legislations. • EU member states’ export procedures are regulated by Council Regulation (EC) No 116/2009 and 1081/2012. • A similar initiative was also undertaken by UNESCO and the WCO.  Objective : harmonize the components of an export document - The UNESCO-WCO Model Export Certificate for Cultural Objects.  But there are still several different types of export certificates in circulation. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  94. 94. 94
  95. 95. 95
  96. 96. 96
  97. 97. 97
  98. 98. 98
  99. 99. Case : Marble statue from Libya 99 Statue dating from 3rd century BC to be returned from the UK to Libya The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  100. 100. 100 2. Further examination: • To examine the item at first hand to determine several things. • Thorough examination of the object  aspect, marks, etc.  to determine if the objet has been illegally excavated, restored, taken from a larger item. • To determine if the object comes from an area subjected to illicit traffic.  Useful documentation : ICOM Red Lists The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  101. 101. Case : Jiroft – Iran 101 Jiroft culture bronze vase The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  102. 102. Case : ICOM Red List Yemen 102 The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI
  103. 103. 103 ◉ ICOM Red Lists – since 2000. - Database - Freely available in digital format - Identify objects at risk and prevent them from being illegally sold or exported. - Illustrate the categories of cultural goods most vulnerable to illicit traffic. - Area “at risk”  extreme diligence should be made. - To check the situation of the object regarding the legal framework of the country of origin. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  104. 104. 104 ☞ Database of National Cultural Heritage Law - UNESCO How to search the database ? 1. Enter the webpage https://en.unesco.org/cultnatlaws/list 2. Choose the category on which you want to conduct a search. You can search using the following criteria : - Field/Subcategory - Keyword - Type of document - Themes - Regions - Country - Year III. Advice for your future acquisitions: due diligence and tools
  105. 105. 105 ◉ INTERPOL • Illicit trafficking in cultural property is a transnational crime. • Centralizing the data available • Accessible to law enforcement agencies and other authorized users. • Useful for governmental officials : ○ An authority locates an artefact from its country in another country ○ The authority that monitors the circulation of cultural objects in its country finds a suspicious item ○ During investigations conducted by law enforcement agencies, a law enforcement authority may take advantage of the database during investigation processes  To check on INTERPOL and other databases of stolen cultural objects. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  106. 106. 106The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  107. 107. 107 ◉ The Art Loss Database http://www.artloss.com/en  Also useful to seek for the assistance of specialists from several individuals : experts, museums, universities, embassies, ICOM, UNESCO, national authorities, legal advisers, etc. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  108. 108. 108 3. Enhanced due diligence • When the provenance or the authenticity of the art object itself raises serious doubts. • Following efforts : - Obtaining additional independent expertise - Consulting expert committees and gathering second/further opinions - Checking of additional databases, registers and listings - Professional background check on the seller (previous art trade activities, information requests to law enforcement authorities, etc.) The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  109. 109. 109 ➢ Conflict of interest • Doubt regarding his/her professional independence • To disclose his commercial or financial relationship with all the parties involved in the transaction. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  110. 110. 110 ➢ Taking the right decision • Any doubt • Strongly recommended not to proceed with the acquisition • The ethical status might be acceptable in two cases : o The object has been legally exported, and an accurate examination of the object has been done o The ethical status is clear, but without any documentation • The decision to acquire the item is the full responsibility of the purchaser. • It is recommended that a file on the object be created and conserved in a safe place The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  111. 111. 111 ➢ Checklist for due diligence • This is not an official document. • An indication of the types of questions that could reasonably be asked • Heritage professionals should also be aware that record keeping in the field is constantly improving, The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  112. 112. 112 ◼︎ 1. First verifications  Do you feel that you are acquiring with confidence from a reputable source? Have you evaluated the account given by the vendor?  Verify the identity of the seller, its qualifications, its specialty and whether or not he or she belongs to a merchant’s association.  Make sure the price given corresponds to the current market price. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  113. 113. 113 ◼︎ 2. Initial examination of the object  Ask what was the last location of the object was and its country of origin.  Does it show signs of certain types of ingrained dust or dirt or has annotations (old labels, inscriptions or other marks) which may demonstrate it has been on display, used or stored as part of an older collection?  If it does carry such marks and labels, have you checked that they are not forged or, if genuine, transferred from other items?  Does it have a distinctive type of mount, mounting or binding that is likely to be from a particular period? The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  114. 114. 114  Has it been mended, partially restored or changed from its original condition (restoration work)? Can you tell from the restoration / conservation done on the object the period in which is was treated?  Check the item in published lost / stolen works of art databases (INTERPOL, Carabinieri…)  Are there any signs that the object has been recently excavated and thus more likely to be illicit?  Are there any signs that the object has come from a larger object or from a building or monument?  Check the ICOM Red Lists The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  115. 115. 115 ◼︎ 3. Further considerations  Does the item come from an area of the world which has experienced a significant amount of illicit excavation in recent years ?  Is the item from a category of objects considered `at risk’ such as certain sorts of African, Latin American and Asian artefacts?  Have you taken advice from experts in the field either in this country or from the country of origin? The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  116. 116. 116 ◼︎ 4. Documents to be requested  Request proof-of-provenance (annotated catalogues, exhibit or auction catalogues, inventory, and correspondence)  Ask if there is a certificate of authenticity  Request to see the export documents The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  117. 117. 117 ◼︎ 5. Precautionary measures to be taken when paying  Ensure that a correct and fully legal receipt has been provided by the seller  Ensure that the invoices, receipts, sale notes or extracts of public sale minutes mention the specifications that the professional has provided regarding the nature, the composition, the origin or the age of the sold object  Request that a picture be added to the object’s receipt  Pay by cheque or account-to-account transfer (credit card) ► Conclusion on Due diligence as a good practice : due diligence still remains a practice based on the good will, despite the existing legal and ethical framework. The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library Training – 8th & 9th December 2019 - Sydney CHICHE-ATTALI III. Advice for your future acquisitions: due diligence and tools
  118. 118. 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 118

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