Fight against illicit traffic of cultural property in South-East Europe. Gaziantep, Turkey, 19-21 November 2012. Link: http://www.unesco.org/new/en/venice/about-this-office/single-view/news/building_capacities_for_the_fight_against_the_illicit_trafficking_of_cultural_property_ in_south_east_europe/

1. UNIDROIT CONVENTION ON STOLEN OR
ILLEGALLY EXPORTED CULTURAL
OBJECTS
(Rome, 24 June 1995)
and its complementarity with the 1970 UNESCO
Convention
Fight against illicit traffic of cultural property in South-East Europe
Regional training workshop
Gaziantep, Turkey, 19 – 21 November 2012

2. ▪ International claims for the restitution and
return of cultural objects
outside the framework of
international conventions
▪ International claims for the restitution and
return of cultural objects
within the framework of the
UNIDROIT Convention

3. International claims for the restitution
and return of cultural objects
outside the framework of international
conventions
 Claims by the owner victim of theft –
differences in legislations, in particular on the
protection of the good faith acquirer
 Claims by a State in the event of illegal
export – In principle, no extraterritorial
recognition of the national laws prohibiting export

4. 1970 UNESCO Convention
 Preventive measures to be taken: inventaries,
export certificates, monitoring trade, imposition of penal
or administrative sanctions, educational campaigns, etc.
 Restitution provisions
(art. 7(b)(ii))
 International cooperation framework: the
idea of strenghtening cooperation among and between
States Parties is present throughout the Convention
(possibility for more specific undertakings)

5. Why a new Convention ?
 Unsatisfactory answers given by the non
conventional law (protection of the good faith acquirer)
 Existing conventions not satisfactory as far as
private law aspects of the protection of cultural
objects are concerned (good faith, time limitations, court
jurisdiction…)
 Is a very good example of co-operation between
States and international organisations
 Adopts a highly constructive approach

6. Definition of cultural objects
 UNESCO 1970 (art. 1) and UNIDROIT 1995 (art.
2) share the same definition (importance and
categories)
Article 2
…. cultural objects are those which, on religious or secular grounds,
are of importance for archaeology, prehistory, history, literature, art
or science and belong to one of the categories listed in the Annex
to this Convention.
 An important difference
objects must not be “specifically designated” by the State to benefit
from the protection given by the 1995 Convention

7. The restitution of stolen objects
UNESCO 1970
Article 3
The import, export or transfer of ownership of cultural property effected
contrary to the provisions adopted under this Convention by the States Parties
thereto, shall be illicit.
Article 7(b)(ii)
 Restitution of cultural property stolen in a museum or a religious or secular
public monument or similar institution ...
 Provided that such property is documented as appertaining to the
inventory of that institution
 States Parties undertake to take appropriate steps to... return any such
property … provided that the requesting State shall pay just compensation to
an innocent purchaser...

8. The restitution of stolen objects
UNIDROIT 1995
The principle
The possessor of a cultural object which has
been stolen shall return it (Article 3(1))
Illicit excavation = theft
….., a cultural object which has been unlawfully
excavated or lawfully excavated but unlawfully
retained shall be considered stolen, when
consistent with the law of the State where the
excavation took place (Article 3(2))

9. The restitution of stolen objects
Two accessory rules
1) Time limitations: 3 years / 50 years
a claim for restitution of an cultural object forming an
integral part of an identified […] archaeological
site, [….] shall not be subject to time
limitations other than a period of three years
[..]
any Contracting State may declare that a claim is
subject to a time limitation of 75 years or such longer
period as is provided in its law

10. The restitution of stolen objects
Two accessory rules
2) Right to payment of a reasonable compensation for
the acquirer who exercised due diligence
Article 4(4)
In determining whether the possessor exercised due
diligence, regard shall be had to all the circumstances of the
acquisition, including […] whether the possessor consulted [..] and
any other relevant information and documentation which it could
reasonably have obtained, and whether the possessor consulted
accessible agencies or […].

11. The return of illegally exported
cultural objects
UNESCO 1970
The Convention contains no specific measures concerning the obligation for
States to conform to other countries’ export laws
Art. 3: no State of the international art market has ever accepted that the obligation
of Art. 3 concerned all illegally exported objects
Art. 7(a): take measures to prevent museums from acquiring cultural property
which has been illegally exported …
Art. 9: in case of danger for the archaeological heritage States Parties undertake to
participate in a concerted international effort to carry out the necessary concrete
measures, inlucluding the control of exports ...
Art. 13(b): cooperation in facilitating the earliest possible restitution of illicitely
exported objects to its rightful owner
....

12. The return of illegally exported
cultural objects
UNIDROIT 1995
 The principle
- Removal of the object … contrary to the law regulating the
export of cultural objects (Article 5(1)), and
- The export significantly impairs a scientific or historic interest,
or
the object is of significant interest for the requesting State
(Article 5(3))
 The conditions for return
- Time limitations
- Compensation or other possibilities

13. Archaeological objects
UNESCO 1970
Article 9
Any State Party …, whose cultural patrimony
is in jeopardy from pillages of archaeological
or ethnological materials may call upon other
States who are affected (bilateral
agreements)

14. Archaeological objects
UNIDROIT 1995
Preamble
Deeply concerned by […] the irreparable damage […] and in particular by the pillage of archaeological sites and
the resulting loss of irreplaceable archaeological, historical and scientific information
Article 3(2) and 3(4)
For the purposes of this Convention, a cultural object which has been unlawfully excavated or lawfully excavated
but unlawfully retained shall be considered stolen, when consistent with the law of the State where the
excavation took place.
[...] a claim for restitution of an object forming an integral part of an identified monument or archaeological site
[…] shall not be subject to time limitations other than a period of three years […]
Article 5(3)
[…] the removal of the object significantly impairs […]:
a) the physical preservation of the object or of its context;
b) the integrity of a complex object;
c) the preservation of information of, for example, a scientific or historical character;
d) the traditional or ritual use of the object by a tribal or indigenous community,
or establishes that the object is of significant importance for the requesting State.

15. traditional or ritual use of the object by
a tribal or indigenous community
Preamble
DEEPLY CONCERNED by the illicit trade in cultural objects and the irreparable damage frequently
caused by it, both to these objects themselves and to the cultural heritage of national, tribal,
indigenous or other communities, and also to the heritage of all peoples, …
Article 3(8)
… a claim for restitution of a sacred or communally important cultural object belonging to and
used by a tribal or indigenous community in a Contracting State as part of that community's
traditional or ritual use, shall be subject to the time limitation applicable to public collections.
Article 5(3)(d)
… the removal of the object from its territory significantly impairs one or more of the following
interests:
(d) the traditional or ritual use of the object by a tribal or indigenous community,
Article 7(2)
the provisions of this Chapter shall apply where a cultural object was made by a member or
members of a tribal or indigenous community for traditional or ritual use by that community and
the object will be returned to that community.

16. Article 13(3)
In their relations with each other,
Contracting States which are Members of
organisations of economic integration […]
may declare that they will apply the
internal rules of these organisations […]
and will not therefore apply as between
these States the provisions of this
Convention the scope of application of
which coincides with that of those rules.

17. No retroactive application
The Convention only applies to objects stolen or illegally
exported after its entry into force
BUT
it in no way confers any approval or legitimacy upon
illegal transactions of whatever kind which may have
taken place before the entry into force of the Convention
nor limits any right or claim outside the framework of
the Convention for the restitution or return (bilateral
agreement, agreements between institutions, UNESCO
Intergovernmental Committee …)

18. The UNIDROIT Convention
A base for the future
A strong influence on national legislations
and on case law
also in countries not Parties to the Convention

19. Minimum Protection
The Convention establishes common,
minimal legal rules
Article 9 (1)
Nothing in this Convention shall prevent a
Contracting State from applying any rules
more favourable to the restitution or the
return of stolen or illegally exported cultural
objects than provided for by this Convention.

20. Increase the number of States
Parties
 33 States Parties
Afghanistan, Argentina, Azerbaijan, Bolivia, Brazil, Cambodia, China,
Colombia, Croatia, Cyprus, Ecuador, El Salvador, Finland, Gabon,
Greece, Guatemala, Hungary, Iran, Italy, Lithuania, Nigeria,
Norway, New Zealand, Panama, Paraguay, Peru, Portugal,
Romania, Slovakia, Slovenia, Spain
 2 new accessions (waiting for the deposit of the
instrument with the Depositary)
Algeria, Angola
 Decision taken to become Party

21. Facilitate the application of the
Convention
Article 3(2) 1995 Convention
An unlawfully excavated cultural object = a stolen
object, when consistent with the law of the State
where the excavation took place.
Has the legislation claiming State ownership really
the effect claimed, in particular for undiscovered
archaeological objects?
UNESCO – UNIDROIT Model Provisions on
State Ownership of Undiscovered Cultural
Objects with explanatory guidelines

22. A better follow-up of the Convention
19 June 2012
first meeting of the special committee in order to
review the practical operation of the Convention
(Art. 20)
Future meetings will be possibly linked to the new
mechanism of supervision of the 1970
Convention

23. CONCLUSION
The main objective of the Convention is not
to increase the number of restitutions /
returns but to change the behaviour of
buyers
“A convention which is looking for legally binding
solutions should not start from the maximum
expectations of those who will gain from it, but
from an acceptable minimum, thanks to the
understanding and to political pressure, by the
presumed loosers”

24. UNIDROIT
Via Panisperna 28
00185 Roma (Italy)
Tel. +39 06 69 62 142
Fax +39 06 69 94 13 94
e.mail: m.schneider@unidroit.org
www.unidroit.org