UNESCO & International Law

Tangible Cultural Heritage

Transitional archaic perkiomen c. 1600-1500 BC

Cultural heritage is the legacy of physical artefacts and intangible attributes of a group or society that are inherited from past generations, maintained in the present and bestowed for the benefit of future generations.

Tangible heritage includes buildings and historic places, monuments, artifacts, etc., which are considered worthy of preservation for the future.  These include objects significant to the archaeology, architecture, science or technology of a specific culture.

Objects are important to the study of human history because they provide a concrete basis for ideas, and can validate them.  Their preservation demonstrates recognition of the necessity of the past and of the things that tell its story.  Preserved objects also validate memories; and the actuality of the object, as opposed to a reproduction or surrogate, draws people in and gives them a literal way of touching the past.  This unfortunately poses a danger as places and things are damaged by the hands of tourists, the light required to display them, and other risks of making an object known and available.

The reality of this risk reinforces the fact that all artifacts are in a constant state of chemical transformation, so that what is considered to be preserved is actually changing – it is never as it once was. Similarly changing is the value each generation may place on the past and on the artifacts that link it to the past.

Role of UNESCO

  • Training activities involving simple and efficient techniques for safeguarding objects, with a special emphasis on the creation of pedagogical tools
  • Museum development by strengthening professional networks and partnerships
  • Improving educational content and access to knowledge through awareness-raising and educational activities
  • Promoting the return, restitution, and improved access to cultural objects by means of awareness-raising and advisory activities and innovative partnerships
  • Last but not least, through the joint implementation of normative and operational activities, particularly in regard to the fight against illicit trafficking and the protection of underwater heritage

Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property – 1970

Walton Corp Agents Engaged in Disputed Removal of Artifacts – Mohawk Grand River Territory, Brant County, Ontario, Canada (2011)

UNESCO
CONVENTIONS & INSTRUMENTS

At the end of the 1960 and in the beginning of the 1970s, thefts were increasing both in museums and at archaeological sites, particularly in the countries of the South. In the North, private collectors and, sometimes, official institutions, were increasingly offered objects that had been fraudulently imported or were of unidentified origin.

It is in this context, and to address such situations, the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property was created in 1970.

The 1970 Convention requires its States Parties to take action in these main fields:

  • Preventive measures:
    Inventories, export certificates, monitoring trade, imposition of penal or administrative sanctions, educational campaigns, etc.
  • Restitution provisions:
    Per Article 7 (b) (ii) of the Convention, States Parties undertake, at the request of the State Party “of origin”, to take appropriate steps to recover and return any such cultural property imported after the entry into force of this Convention in both States concerned, provided, however, that the requesting State shall pay just compensation to an innocent purchaser or to a person who has valid title to that property. More indirectly and subject to domestic legislation, Article 13 of the Convention also provides provisions on restitution and cooperation.
  • International cooperation framework:
    The idea of strengthening cooperation among and between States Parties is present throughout the Convention. In cases where cultural patrimony is in jeopardy from pillage, Article 9 provides a possibility for more specific undertakings such as a call for import and export controls.

The 1995 UNIDROIT Convention

UNIDROIT is an independent intergovernmental organisation with its headquarters in the Villa Aldobrandini in Rome. Its purpose is to study needs and methods for modernising, harmonising and coordinating private and, in particular, commercial law between States and groups of States.

To take international cooperation, UNIDROIT was asked by UNESCO to develop the Convention on Stolen or Illegally Exported Cultural Objects (1995), as a complementary instrument to the 1970 Convention. States commit to a uniform treatment for restitution of stolen or illegally exported cultural objects and allow restitution claims to be processed directly through national courts. Moreover the UNIDROIT Convention covers all stolen cultural objects, not just inventoried and declared ones and stipulates that all cultural property must be returned.

Probably the most important provision in the entire Convention is its Article 3(1), which enshrines the principle that the possessor of a cultural object that has been stolen must return it whatever the circumstances. Rather than a moral judgment or choice between the two systems, which would imply penalizing either the original owner or the good faith buyer since they cannot both be given equal protection, a pragmatic solution was worked out: which rule was most likely to curb illicit trafficking? The answer was to compel the buyer, on pains of having to return the object, to check that the object was being lawfully traded. This principle, coupled with the possibility of compensation for the buyer who can prove that he acted “with due diligence” (Article 4(1)), constitutes one of the most important legal rules in the fight against illicit trafficking in cultural objects. Its effect on the art market, which has tended to be reluctant to reveal the origin of cultural objects and where buyers are not unduly curious, will be immediate.

Another type of cultural object covered by the UNIDROIT Convention that must be mentioned is the products of archaeological excavations, which are only covered by the 1970 Convention to the extent of the interpretation given by some States to its Article 9. The UNIDROIT Convention for its part contemplates the possibility of an action being brought on the basis of its provisions in respect either of theft or of illegal export: an object is considered stolen “when consistent with the law of the State where the excavation took place” (Article 3(2)) or when subparagraphs (a), (b) or (c) of Article 5(3) apply, which refer to the objects from archaeological sites. The type of proceeding chosen will depend on how difficult it is to adduce proof (is the object a product of excavation or has it been illegally exported?).

While the urgency of the situation is universally acknowledged, the response in terms of human and financial input and legal protection has fallen far short of what is needed. National laws in the matter differ widely and this diversity is put to good use by traffickers, as is the limited (strictly national) territorial scope of the export bans set in place by individual States: the steps taken by one State to protect its works of art not applied by other States, no more than are their fiscal, penal or administrative rules, unless inter-State agreements have been concluded to the contrary.

________________________________________________

UNIDROIT CONVENTION ON STOLEN OR ILLEGALLY EXPORTED CULTURAL OBJECTS (Rome, 24 June 1995)

THE STATES PARTIES TO THIS CONVENTION,

ASSEMBLED in Rome at the invitation of the Government of the Italian Republic from 7 to 24 June 1995 for a Diplomatic Conference for the adoption of the draft UNIDROIT Convention on the International Return of Stolen or Illegally Exported Cultural Objects,

CONVINCED of the fundamental importance of the protection of cultural heritage and of cultural exchanges for promoting understanding between peoples, and the dissemination of culture for the well-being of humanity and the progress of civilisation,

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, and in particular by the pillage of archaeological sites and the resulting loss of irreplaceable archaeological, historical and scientific information,

DETERMINED to contribute effectively to the fight against illicit trade in cultural objects by taking the important step of establishing common, minimal legal rules for the restitution and return of cultural
objects between Contracting States, with the objective of improving the preservation and protection of the cultural heritage in the interest of all,

EMPHASISING that this Convention is intended to facilitate the restitution and return of cultural objects, and that the provision of any remedies, such as compensation, needed to effect restitution and return in some States, does not imply that such remedies should be adopted in other States, AFFIRMING that the adoption of the provisions of this Convention for the future 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,

CONSCIOUS that this Convention will not by itself provide a solution to the problems raised by illicit trade, but that it initiates a process that will enhance international cultural co-operation and maintain a proper role for legal trading and inter-State agreements for cultural exchanges,

ACKNOWLEDGING that implementation of this Convention should be accompanied by other effective measures for protecting cultural objects, such as the development and use of registers, the physical protection of archaeological sites and technical co-operation,

RECOGNISING the work of various bodies to protect cultural property, particularly the 1970 UNESCO Convention on illicit traffic and the development of codes of conduct in the private sector,

HAVE AGREED as follows:

CHAPTER I – SCOPE OF APPLICATION AND DEFINITION
Article 1
This Convention applies to claims of an international character for:
(a) the restitution of stolen cultural objects;
(b) the return of cultural objects removed from the territory of a Contracting State contrary to its law regulating the export of cultural objects for the purpose of protecting its cultural heritage (hereinafter “illegally exported cultural objects”).

Article 2
For the purposes of this Convention, 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.

CHAPTER II – RESTITUTION OF STOLEN CULTURAL OBJECTS
Article 3
(1) The possessor of a cultural object which has been stolen shall return it.
(2) 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.
(3) Any claim for restitution shall be brought within a period of three years from the time when the claimant knew the location of the cultural object and the identity of its possessor, and in any case within a period of fifty years from the time of the theft.
(4) However, a claim for restitution of a cultural object forming an integral part of an identified monument or archaeological site, or belonging to a public collection, shall not be subject to time limitations other than a period of three years from the time when the claimant knew the location of the cultural object and the identity of its possessor.
(5) Notwithstanding the provisions of the preceding paragraph, 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. A claim made in another Contracting State for restitution of a cultural object displaced from a monument, archaeological site or public collection in a Contracting State making such a declaration shall also be subject to that time limitation.
(6) A declaration referred to in the preceding paragraph shall be made at the time of signature, ratification, acceptance, approval or accession.
(7) For the purposes of this Convention, a “public collection” consists of a group of inventoried or otherwise identified cultural objects owned by:
(a) a Contracting State
(b) a regional or local authority of a Contracting State;
(c) a religious institution in a Contracting State; or
(d) an institution that is established for an essentially cultural, educational or scientific purpose in a Contracting State and is recognised in that State as serving the public interest.
(8) In addition, 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 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.
(2) Without prejudice to the right of the possessor to compensation referred to in the preceding paragraph, reasonable efforts shall be made to have the person who transferred the cultural object to the possessor, or any prior transferor, pay the compensation where to do so would be consistent with the law of the State in which the claim is brought.
(3) Payment of compensation to the possessor by the claimant, when this is required, shall be without prejudice to the right of the claimant to recover it from any other person.
(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.
(5) The possessor shall not be in a more favourable position than the person from whom it acquired the cultural object by inheritance or otherwise gratuitously.

CHAPTER III – RETURN OF ILLEGALLY EXPORTED CULTURAL OBJECTS
Article 5
(1) A Contracting State may request the court or other competent authority of another Contracting State to order the return of a cultural object illegally exported from the territory of the requesting State.
(2) A cultural object which has been temporarily exported from the territory of the requesting State, for purposes such as exhibition, research or restoration, under a permit issued according to its law regulating its export for the purpose of protecting its cultural heritage and not returned in accordance with the terms of that permit shall be deemed to have been illegally exported.
(3) The court or other competent authority of the State addressed shall order the return of an illegally exported cultural object if the requesting State establishes that the removal of the object from its territory significantly impairs one or more of the following interests:
(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 cultural importance for the requesting State.
(4) Any request made under paragraph 1 of this article shall contain or be accompanied by such information of a factual or legal nature as may assist the court or other competent authority of the State addressed in determining whether the requirements of paragraphs 1 to 3 have been met.
(5) Any request for return shall be brought within a period of three years from the time when the requesting State knew the location of the cultural object and the identity of its possessor, and in any case within a period of fifty years from the date of the export or from the date on which the object should have been returned under a permit referred to in paragraph 2 of this article.

Article 6
(1) The possessor of a cultural object who acquired the object after it was illegally exported shall be entitled, at the time of its return, to payment by the requesting State of fair and reasonable compensation, provided that the possessor neither knew nor ought reasonably to have known at the time of acquisition that the object had been illegally exported.
(2) In determining whether the possessor knew or ought reasonably to have known that the cultural object had been illegally exported, regard shall be had to the circumstances of the acquisition, including the absence of an export certificate required under the law of the requesting State.
(3) Instead of compensation, and in agreement with the requesting State, the possessor required to return the cultural object to that State, may decide:
(a) to retain ownership of the object; or
(b) to transfer ownership against payment or gratuitously to a person of its choice residing in the requesting State who provides the necessary guarantees.
(4) The cost of returning the cultural object in accordance with this article shall be borne by the requesting State, without prejudice to the right of that State to recover costs from any other person.
(5) The possessor shall not be in a more favourable position than the person from whom it acquired the cultural object by inheritance or otherwise gratuitously.

Article 7
(1) The provisions of this Chapter shall not apply where:
(a) the export of a cultural object is no longer illegal at the time at which the return is requested; or
(b) the object was exported during the lifetime of the person who created it or within a period of fifty years following the death of that person.
(2) Notwithstanding the provisions of sub-paragraph (b) of the preceding paragraph, 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.

CHAPTER IV – GENERAL PROVISIONS
Article 8
(1) A claim under Chapter II and a request under Chapter III may be brought before the courts or other competent authorities of the Contracting State where the cultural object is located, in addition to the courts or other competent authorities otherwise having jurisdiction under the rules in force in Contracting States.
(2) The parties may agree to submit the dispute to any court or other competent authority or to arbitration.
(3) Resort may be had to the provisional, including protective, measures available under the law of the Contracting State where the object is located even when the claim for restitution or request for return of the object is brought before the courts or other competent authorities of another Contracting State.

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.
(2) This article shall not be interpreted as creating an obligation to recognise or enforce a decision of a court or other competent authority of another Contracting State that departs from the provisions of this Convention.

Article 10
(1) The provisions of Chapter II shall apply only in respect of a cultural object that is stolen after this Convention enters into force in respect of the State where the claim is brought, provided that:
(a) the object was stolen from the territory of a Contracting State after the entry into force of this Convention for that State; or
(b) the object is located in a Contracting State after the entry into force of the Convention for that State.
(2) The provisions of Chapter III shall apply only in respect of a cultural object that is illegally exported after this Convention enters into force for the requesting State as well as the State where the request is brought.
(3) This Convention does not in any way legitimise any illegal transaction of whatever nature which has taken place before the entry into force of this Convention or which is excluded under paragraphs (1) or (2) of this article, nor limit any right of a State or other person to make a claim under remedies available outside the framework of this Convention for the restitution or return of a cultural object stolen or illegally exported before the entry into force of this Convention.

CHAPTER V – FINAL PROVISIONS
Article 11
(1) This Convention is open for signature at the concluding meeting of the Diplomatic Conference for the adoption of the draft UNIDROIT Convention on the International Return of Stolen or Illegally Exported Cultural Objects and will remain open for signature by all States at Rome until 30 June 1996.
(2) This Convention is subject to ratification, acceptance or approval by States which have signed it.
(3) This Convention is open for accession by all States which are not signatory States as from the date it is open for signature.
(4) Ratification, acceptance, approval or accession is subject to the deposit of a formal instrument to that effect with the depositary.

Article 12
(1) This Convention shall enter into force on the first day of the sixth month following the date of deposit of the fifth instrument of ratification, acceptance, approval or accession.
(2) For each State that ratifies, accepts, approves or accedes to this Convention after the deposit of the fifth instrument of ratification, acceptance, approval or accession, this Convention shall enter into force in respect of that State on the first day of the sixth month following the date of deposit of its instrument of ratification, acceptance, approval or accession.

Article 13
(1) This Convention does not affect any international instrument by which any Contracting State is legally bound and which contains provisions on matters governed by this Convention, unless a contrary declaration is made by the States bound by such instrument.
(2) Any Contracting State may enter into agreements with one or more Contracting States, with a view to improving the application of this Convention in their mutual relations. The States which have concluded such an agreement shall transmit a copy to the depositary.
(3) In their relations with each other, Contracting States which are Members of organisations of economic integration or regional bodies may declare that they will apply the internal rules of these organisations or bodies 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.

Article 14
(1) If a Contracting State has two or more territorial units, whether or not possessing different systems of law applicable in relation to the matters dealt with in this Convention, it may, at the time of signature or of the deposit of its instrument of ratification, acceptance, approval or accession, declare that this Convention is to extend to all its territorial units or only to one or more of them, and may substitute for its declaration another declaration at any time.
(2) These declarations are to be notified to the depositary and are to state expressly the territorial units to which the Convention extends.
(3) If, by virtue of a declaration under this article, this Convention extends to one or more but not all of the territorial units of a Contracting State, the reference to:
(a) the territory of a Contracting State in Article 1 shall be construed as referring to the territory of a territorial unit of that State;
(b) a court or other competent authority of the Contracting State or of the State addressed shall be construed as referring to the court or other competent authority of a territorial unit of that State;
(c) the Contracting State where the cultural object is located in Article 8 (1) shall be construed as referring to the territorial unit of that State where the object is located; 8.
(d) the law of the Contracting State where the object is located in Article 8 (3) shall be construed as referring to the law of the territorial unit of that State where the object is located; and
(e) a Contracting State in Article 9 shall be construed as referring to a territorial unit of that State.
(4) If a Contracting State makes no declaration under paragraph 1 of this article, this Convention is to extend to all territorial units of that State.

Article 15
(1) Declarations made under this Convention at the time of signature are subject to confirmation upon ratification, acceptance or approval.
(2) Declarations and confirmations of declarations are to be in writing and to be formally notified to the depositary.
(3) A declaration shall take effect simultaneously with the entry into force of this Convention in respect of the State concerned. However, a declaration of which the depositary receives formal notification after such entry into force shall take effect on the first day of the sixth month following the date of its deposit with the depositary.
(4) Any State which makes a declaration under this Convention may withdraw it at any time by a formal notification in writing addressed to the depositary. Such withdrawal shall take effect on the first day of the sixth month following the date of the deposit of the notification.

Article 16
(1) Each Contracting State shall at the time of signature, ratification, acceptance, approval or accession, declare that claims for the restitution, or requests for the return, of cultural objects brought by a State under Article 8 may be submitted to it under one or more of the following procedures:
(a) directly to the courts or other competent authorities of the declaring State;
(b) through an authority or authorities designated by that State to receive such claims or requests and to forward them to the courts or other competent authorities of that State;
(c) through diplomatic or consular channels.
(2) Each Contracting State may also designate the courts or other authorities competent to order the restitution or return of cultural objects under the provisions of Chapters II and III.
(3) Declarations made under paragraphs 1 and 2 of this article may be modified at any time by a new declaration.
(4) The provisions of paragraphs 1 to 3 of this article do not affect bilateral or multilateral agreements on judicial assistance in respect of civil and commercial matters that may exist between Contracting States.

Article 17
Each Contracting State shall, no later than six months following the date of deposit of its instrument of ratification, acceptance, approval or accession, provide the depositary with written information in one of the official languages of the Convention concerning the legislation regulating the export of its cultural objects. This information shall be updated from time to time as appropriate.

Article 18
No reservations are permitted except those expressly authorised in this Convention.

Article 19
(1) This Convention may be denounced by any State Party, at any time after the date on which it enters into force for that State, by the deposit of an instrument to that effect with the depositary.
(2) A denunciation shall take effect on the first day of the sixth month following the deposit of the instrument of denunciation with the depositary. Where a longer period for the denunciation to take effect is specified in the instrument of denunciation it shall take effect upon
the expiration of such longer period after its deposit with the depositary.
(3) Notwithstanding such a denunciation, this Convention shall nevertheless apply to a claim for restitution or a request for return of a cultural object submitted prior to the date on which the denunciation takes effect.

Article 20
The President of the International Institute for the Unification of Private Law (UNIDROIT) may at regular intervals, or at any time at the request of five Contracting States, convene a special committee in order to review the practical operation of this Convention.

Article 21
(1) This Convention shall be deposited with the Government of the Italian Republic.
(2) The Government of the Italian Republic shall:
(a) inform all States which have signed or acceded to this Convention and the President of the International Institute for the Unification of Private Law (UNIDROIT)
of:
(i) each new signature or deposit of an instrument of ratification, acceptance, approval or accession, together with the date thereof;
(ii) each declaration made in accordance with this Convention; 10.
(iii) the withdrawal of any declaration;
(iv) the date of entry into force of this Convention;
(v) the agreements referred to in Article 13;
(vi) the deposit of an instrument of denunciation of this Convention together with the date of its deposit and the date on which it takes effect;
(b) transmit certified true copies of this Convention to all signatory States, to all States acceding to the Convention and to the President of the International Institute for the Unification of Private Law (UNIDROIT);
(c) perform such other functions customary for depositaries.

IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorised, have signed this Convention.
DONE at Rome, this twenty-fourth day of June, one thousand nine hundred and ninety-five, in a single original, in the English and French languages, both texts being equally authentic.

(a) Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of palaeontological interest;
(b) property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance;
(c) products of archaeological excavations (including regular and clandestine) or of archaeological discoveries;
(d) elements of artistic or historical monuments or archaeological sites which have been dismembered;
(e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals;
(f) objects of ethnological interest;
(g) property of artistic interest, such as:
(i) pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand);
(ii) original works of statuary art and sculpture in any material;
(iii) original engravings, prints and lithographs;
(iv) original artistic assemblages and montages in any material;
(h) rare manuscripts and incunabula, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections;
(i) postage, revenue and similar stamps, singly or in collections;
(j) archives, including sound, photographic and cinematographic archives;
(k) articles of furniture more than one hundred years old and old musical instruments.

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