Combating art trafficking QNL - training november 2020 - Sydney Chiche-Attali

COMBATING ART TRAFFICKING
LEGAL ASPECTS AND DUE DILIGENCE
Sydney CHICHE-ATTALI, Lawyer
Chiche-Attali Law Firm
Training - 22-23-24 November 2020
Himaya project
Qatar National Library
1

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 1/7 of 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
• 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
• 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
• 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

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• 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

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• 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

CONTENT
8
I. Combating art trafficking:
International and Regional Legal
Framework
II Combating art trafficking:
Due diligence and tools
Combating Art trafficking – Legal Aspects and Due Diligence - QNL
Training – November 2020 - Sydney CHICHE-ATTALI

PART I
9
I. Combating Art
Trafficking:
International and
Regional Legal
Framework

A – History
• Article CXIV of the Peace Treaty of Westphalia, 1648: provisions on the return of
looted artefacts.
• Convention of Paris, 1815: the return to its country of origin of both confiscated
property.
First international regulations on cultural property arised from relations to the laws of
war.
Training – November 2020 - Sydney CHICHE-ATTALI 10
Part I - Combating Art trafficking: International
and Regional Legal Framework

• The Lieber Code, signed by the US President Lincoln in 1863: one of the founding
documents for the laws of war .
• The Brussels Declaration, 1874: the reference document for the first Hague
Convention of 1899.
• The First Hague Conference in 1899: the Declaration on the Laws of War.
• The Hague Convention, 1899: Article 56 + Article 47
• The Second Hague Convention in 1907
11

Case : Venus of
Cyrene
ITALY C/ LYBIA
12

• 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

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.
14

➤ 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;
❖ Centers containing monuments.
15

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

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The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library
• International Law imposes certain duties on the occupying power
• Articles 1−5 of the First Protocol require the High Contracting Parties to :
- Prevent the export of cultural property
- Seize cultural property either directly or indirectly imported into its territory if it is exported from an
occupied territory.
- Return the property to the authorities of the territory previously occupied at the end of hostilities.
- Pay a compensation to the purchaser in good faith of the cultural property that has to be returned to the
previously occupied territory

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

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➤ 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

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- 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) .

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

• Fight against illicit trafficking ⇨ generally associated with return and restitution
cases.
• Preventive measures ⇨ the most powerful and effective techniques.
• The 1970 UNESCO Convention ⇨ definition of cultural and even natural property :
fauna, archaeological items, stamps, furniture, musical instruments, paintings and
many other type of cultural objects.
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The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - Qatar National Library

➤ Remember: National legislation should include a clear definition of cultural
property as well as provisions on state ownership.
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• 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
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• Article 3 of the 1970 UNESCO Convention
import, export or transfer of ownership of
cultural property effected contrary to the
provisions of the Convention are illicit.
• The Solution: Criminalizing the import
when the export cannot be proven legal may
provide a functional solution to
implementation.

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

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

➤ National legislation:
export restrictions and the issuance of export certificates / temporary permission
documents to control the flow of cultural property crossing borders.
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➤ 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.
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● The Market Reduction Approach (MRA)
● A due diligence principle
● The return and restitution procedures of cultural property
○ But limits: the artefacts known and recorded
30

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

Case :
Jiroft – Iran
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Jiroft culture bronze vase

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

● UNESCO Convention 1970: States Parties have to
adopt penal or administrative sanctions for
violations of an export prohibition or for an
import of a cultural property that is stolen from a
museum or similar institution.
● Education, information and vigilance.
● States Parties oblige art dealers to keep records
on the artefacts they sell, including information
on the origin, by applying penal or administrative
sanctions for failure to do so.
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● 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.

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➤ Article 13 – Each State has to clarity of the definition of State ownership in national legislation is
crucial (ex : Italy, Greece, China)
For example:
- The Italian legislation: all archaeological findings as Property of the State.
- In Greece: findings of archaeological excavations or research, regardless of date, belong to the
State.
- In China; movable cultural relics remaining underground, in inland waters or territorial seas within
the boundary of China are owned by the State.

Case :
Peru Vs. Johnson
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Moche Archaeological Objects

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

Canon Tables –
Western Prelacy of
the Armenian
Apostolic Church of
America and J. Paul
Getty Museum
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The Circulation of Art and Cultural Goods – Legal Aspects and Due Diligence - QNL
Sydney CHICHE-ATTALI 42
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.

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

Achaemenid
Limestone Relief –
Iran v. Berend
44
A fragment of a bas-relief from the city of Persepolis,
dating from the 5th Century B.C.E

● 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’.
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● 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.
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(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.

Case :
University of Geneva
47
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

● 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
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➤ 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.
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● State Parties are 47, and this Convention has a great influence.
● National legislation of some States: Switzerland, Holland, etc.
● Regional regulations: EU
50

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.
51

● 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.
52

Case :
Hobby Lobby
53
Cuneiform Tablets and Ancient Clay Bullae

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

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

3. UNSC Resolution 2347 (2017)
● First resolution adopted by the UN Security Council on safeguarding cultural heritage in armed
conflict.
● 4 dimensions:
1) to mainstream all international efforts by various organizations ;
2) to identify offences relating to tangible cultural heritage during armed conflict ;
3) to encourage the UN member states to propose listings of ISIL, Al -Qaida and associated;
individuals, groups, undertakings and entities involved in the illicit trade in cultural property ;
4) to encourage member states to adopt preventive measures
56

● 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.
57

 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.
58

F - The European Union legislation on the import, export and return of cultural property
59
• 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.

60
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

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.
61

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
64

Financial thresholds applicable to certain
categories under A (in euro)
● 50 000
● Statuary
● Books
● Collections
● Means of transport
● Any other object
● 150 000
● Pictures
65

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.
66

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.
67

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)
68

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.
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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
70

Part II
II. Combating Art
trafficking: Due
diligence and tools
71

72
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.
II. Combating Art trafficking: Due diligence and
tools

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• 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.
tools

74
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.
tools

75
 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
tools

Case :
Hobby Lobby
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Cuneiform Tablets and Ancient Clay Bullae

77
• 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.
tools

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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.
tools

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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.
tools

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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.
tools

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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.
tools

Case :
Case Dancing Shiva
82
The Dancing Shiva statue on display at the National Gallery of Australia.

Case :
United States v.
One Ancient
Mosaic
83
This photograph was taken by FBI after the mosaic was seized
pursuant to a federal warrant.

84
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.
tools

Case :
Marble statue from
Libya
90
Statue dating from 3rd century BC to be returned from the UK to Libya

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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
tools

Case :
Jiroft – Iran
92
Jiroft culture bronze vase

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◉ 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.
tools

95
☞ 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
tools

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◉ 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.
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◉ 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.
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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.)
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➢ Conflict of interest
• Doubt regarding his/her professional independence
• To disclose his commercial or financial relationship with all the parties involved
in the transaction.
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 Taking the right decision
• Any doubt
• Strongly recommended not to proceed with the acquisition
• The ethical status might be acceptable in 2 cases:
 The object has been legally exported, and an accurate examination of the object has been done
 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
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➢ 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,
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◼︎ 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.
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◼︎ 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?
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• 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
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◼︎ 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?
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◼︎ 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
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◼︎ 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.
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Thank
you !
Contact :
Sydney CHICHE-ATTALI, Avocat à la Cour
sydney@chicheattaliavocats.com
91, Boulevard Raspail – 75006 Paris
www.chicheattaliavocat.com
109

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