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International Aspects of Cultural Property

An Overview of Basic Instruments and Issues

Published online by Cambridge University Press:  28 February 2019

Theresa Papademetriou
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Extract

The significance of cultural property as “a basic element of civilization and national culture” and its interchange among countries for scientific, cultural and educational purposes has been acknowledged in a number of legal instruments prepared under the aegis of UNESCO, an intergovernmental organization dedicated to the preservation of the world's cultural heritage. As the Preamble of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property asserts: “… [the interchange] increases the knowledge of the civilization of man, enriches the cultural life of all peoples and inspires mutual respect and appreciation among nations.” Moreover, the 1995 adopted UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects further attests to 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 civilization.”

Type
Articles
Information
International Journal of Legal Information , Volume 24 , Issue 3: Ivan Sipkov in memoriam , Winter 1996 , pp. 270 - 301
Copyright
Copyright © 1996 by the International Association of Law Libraries 

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References

1 See Recommendation Concerning the International Exchange of Cultural Property, ¶ 1, adopted by the General Conference on Nov. 26, 1976, in Conventions and Recommendations of UNESCO Concerning the Protection of Cultural Heritage (1983).Google Scholar

2 Art. 1, ¶ 2(c), of the Constitution of UNESCO states that one of its functions is to “assure the conservation and protection of the world's cultural heritage and to this effect recommend to nations to adopt the necessary international convention.”Google Scholar

3 Supra note 1, 823 UNTS 231; 10 ILM 271 (1971).Google Scholar

4 Done at Rome, June 24, 1995, 34 I.L.M. 1322 (1995).Google Scholar

5 Preamble of the Convention, ¶ 2, 249 UNTS 240–88.Google Scholar

6 1037 UNTS 1972.Google Scholar

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10 Preamble, ¶ 5, of the Convention.Google Scholar

11 Strati, supra note 8.Google Scholar

12 Supra note 1.Google Scholar

13 For a further discussion regarding these two terms used in the same convention see K. Jote, International Legal Protection of Cultural Heritage 204, 205 (1994).Google Scholar

14 27 UST 37; 11 ILM 1358.Google Scholar

15 Strati, supra note 8, at 9; see also, Prott & O'Keefe, supra note 9.Google Scholar

16 15 ILM 1350 (1976).Google Scholar

17 ETS No. 121.Google Scholar

18 Council of European Communities, Treaty on European Union, 42 (1992).Google Scholar

19 22 UST 494; TIAS No. 7088.Google Scholar

20 UNESCO's recommendations, whether of a national or international character, contain norms which are not subject to ratification but the Member States are invited to apply. Recommendations possess great authority since they are adopted by the General Conference. Some of the most significant UNESCO Recommendations are the following: Recommendation on International Principles Applicable to Archaeological Excavations (1956); Recommendation Concerning the Most Effective Means of Rendering Museums Accessible to Everyone (1960); Recommendation Concerning the Safeguarding of the Beauty and Character of landscapes and Sites (1962); Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property (1964); Recommendation Concerning the Preservation of Cultural property Endangered by Public or Private Works (1968); Recommendation Concerning the Protection at National Level of the Cultural and Natural Heritage (1972); Recommendation Concerning the International Exchange of Cultural Property (1976); Recommendation Concerning the Safeguarding and Contemporary Role of Historic Areas (1976); Recommendation for the Protection of Movable Cultural property (1978); Recommendation for the Safeguarding and Preservation of Moving Images (1980); and Recommendation on the Safeguarding of the Traditional Culture and Folklore.Google Scholar

21 For instance, the Lieber Code adopted in the United States in 1863 stated that cultural property was not to be “seized, sold, given away, wantonly destroyed, damaged, or privately appropriated until such time as peace treaty determined the ultimate ownership of the property.” The Hague Conventions of 1899 and 1907 on the Laws and Customs of War on Land also encompassed a series of provisions intended to safeguard cultural property during war. In 1935, the Washington Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (the Roerich Pact) was signed [A. Roberts & R. Guelff, Documents on the Laws of War 339 (1989).Google Scholar

22 Id.Google Scholar

23 The difference between these two forms of protection is that the respect of cultural property may be waived in case of military necessity.Google Scholar

24 Art. 4, ¶ 1, of the Convention.Google Scholar

25 Art. 8, ¶ 1, of the 1954 Convention.Google Scholar

26 Id. art. 9.Google Scholar

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29 Art. 1 of the Protocol.Google Scholar

30 Id. art. 2.Google Scholar

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32 Id. at 339.Google Scholar

33 The Convention came into force on Dec. 17, 1975; 11 ILM 1972, 1358; 1037 UNTS 151.Google Scholar

34 This is the most widely accepted Convention and almost two thirds of the 163 UNESCO Member States are parties [Jote, supra note 13, at 245].Google Scholar

35 ETS No. 143.Google Scholar

36 218 UNTS 140 (1955).Google Scholar

37 ETS No. 143.Google Scholar

38 738 UNTS 227 (1969); 8 ILM 736 (1969).Google Scholar

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41 The final draft was sent to the Committee of Ministers of the Council of Europe in Mar. 1985 for approval. However, due to Turkey's objection concerning the territorial scope of application, it has not yet been opened for signature [Strati, supra note 8, at 87].Google Scholar

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43 Art thieves steal approximately 60,000 works of art in Europe annually. The black market is made up of art dealers who are experts in the laundering of stolen artifacts. See, V. J. Vitrano, Protecting Cultural Objects In an Internal Border-Free EC: The EC Directive and Regulation for the protection and Return of Cultural objects, 17 Fordham Int. L.J. 1164 (1994).Google Scholar

44 Id. at 1164 & 1175.Google Scholar

45 T. J. Nicholas II, EEC Measures on the Treatment of National Measures, 16 Loy. L.A. Int'L. & Com.L.J. 127, 150 (No. 16, 1993).Google Scholar

46 The majority belong to the civil law tradition with the exception of England and Ireland.Google Scholar

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48 For a description of the development of laws which protect bona fide purchasers and the underlying policies, see K. T. Burke, International Art Theft, 13 Loy.I.A.Int'l. & Com.L.J. 427, 442 (1990).Google Scholar

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50 This article is similar to Art. XX of the General Agreement on Tariffs and Trade (GATT) which provides:Google Scholar

Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:Google Scholar

…

(f) imposed for the protection of national treasures of artistic, historic or archaeological value….Google Scholar

51 Official Journal of the European Communities, L395 (1992).Google Scholar

52 Id. L74/74 (1993).Google Scholar

53 Supra note 51, art. 2, ¶ 2.Google Scholar

54 Id. art. 2, ¶ 3.Google Scholar

55 Id. see Preamble, ¶ 10.Google Scholar

56 Id. art. 2, ¶ 4.Google Scholar

57 Vitrano, supra note 43, at 1168.Google Scholar

58 Supra note 51, L77/24 (Mar. 31, 1993).Google Scholar

59 Supra note 52, art. 13.Google Scholar

60 The Annex includes fourteen categories of objects classified as national treasures.Google Scholar

61 Supra note 52, art. 1.Google Scholar

62 Id. art. 5.Google Scholar

63 Id. art. 1, ¶¶ 6 & 7.Google Scholar

64 Id. art. 7.Google Scholar

65 Id. art. 9, ¶ 1. With regard to the amount of compensation, the Commission has stated the following:Google Scholar

The amount of compensation will not necessarily be equivalent to the purchase price paid by the acquirer. According to the case in point, it may be more or less than the purchase price because the court also has to take other factors into account, e.g. the objective value of the object, its sentimental value for the acquirer, the costs he has incurred in preserving it and above, whether or not he remains – under the law of the requesting Member State (see Article 12) – owner of the cultural object once returned [Nicholas, supra note 45, at 162 & 163].Google Scholar

66 Supra note 52, art. 12.Google Scholar

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69 15 ILM 1350. Seven countries are parties to the Convention, the United States is not yet a party.Google Scholar

70 The Preliminary Report of the Director-General of UNESCO on the 1956 UNESCO Recommendation on International Principles Applicable to Archaeological Excavations recommends that ownership question be left undisturbed. Its ¶ 24, reads:Google Scholar

Any recommendation cutting across the property laws in force in each State would meet with strong opposition and that therefore it was best to leave States complete free to adopt whatever principle they thought preferable [Strati, supra note 8, at 100].Google Scholar

71 Art. 7 of the Convention.Google Scholar

72 Art. 5 of the Convention.Google Scholar

73 Worldwide, 45,000 to 53,000 art thefts occur annually. Only about 10% of all stolen art is ever recovered [see, K. T. Burke, Supra note 48, at 427.Google Scholar

74 S. F. Grover, Discovery in Art Replevin Actions 70 Texas L.R. 1431, 1441 (1992).Google Scholar

75 The legislative history of this article indicates that the participatory states disagreed with its wording. One argument was that it would interfere in the domestic domain of other states by obliging the importing state to impose the law of the exporting state [Jote, supra note 13, 207].Google Scholar

76 Id. at 210.Google Scholar

77 It specifically reads as follows:Google Scholar

The States Parties to this Convention undertake: (i) to prohibit the import of cultural property stolen from a museum or secular public monument or similar institution in another State Party to this Convention…provided that such property is documented as appertaining to the inventory of that institution.Google Scholar

78 Burke, supra note 48, at 437.Google Scholar

79 34 ILM 1322 (1995).Google Scholar

80 The United States reserved the right to determine whether or not to impose export controls over cultural property and under the understanding that it does not alter property rights under the laws of the states [M. N. Leich, Contemporary Practice of the United States Relating to International Law, 76 Am. J. Int'l. L. 611 (1982).Google Scholar

81 Interim Report on the Movement of Objects of Cultural Interest in the Context of the Single Market, Eur. Parl. Doc., as quoted in T. J. Nicholas, Supra note 45, at 127, 141.Google Scholar

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83 25 ILM 44 (1986).Google Scholar

84 P. J. O'Keefe, Export/Import Laws – Problems of Drafting and Implementation International Sale of Works of Art 61, 72 (1990).Google Scholar

85 For an elaborate description of restitution in the context of war, see Jote, supra note 13, at 261.Google Scholar

86 For a discussion of the terms restitution or return, see Jote, supra note 13, at 261.Google Scholar

87 Merryman, Two Ways about Thinking of Cultural Property;; see also, D. N. Thomason, Rolling Back History: The United Nations General Assembly and the Right to Cultural Property, 22 J.In.L. 47, 95 (No. 1, 1990).Google Scholar

88 See Universal Declaration of Human Rights, arts. 1, 27; art. 1 of the International Covenant on Civil and Political Rights; and art. 1 of the International Covenant on Economic, Social and Cultural Rights stating that all people have the right of self-determination, which has political, economic, social and cultural aspects.Google Scholar

89 The battle between the right of art-poor nations to incorporate and the art-rich nation to recovery began with elginism. M. F. Lindsay, The Recovery of Cultural Artifacts: The Legacy of Our Archaeological Heritage, 22 J. Int. L. 165, 181 (No. 1, 1990).Google Scholar

90 R. W. Mastalir, Supra note 28, at 1033, 1058.Google Scholar

91 Merryman, supra note 87: The distinction between these two schools of thought has also been reflected in the Conventions. The 1970 UNESCO Convention on the Protection of Cultural Property explicitly espouses a nationalist stance. The Convention, while it acknowledges the significance of interchange of cultural property, states that:Google Scholar

…cultural property constitutes one of the basic elements of civilization and national culture, and that its true value can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting.Google Scholar

On the other end of the spectrum, the 1954 Hague Convention and the World Heritage Convention, as its title indicates, espouse the international culturalism stance. The Hague Convention proclaims that:Google Scholar

…damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world…and that the preservation of the cultural heritage is of great importance for all peoples of the world and that is importance that this heritage should receive international protection.Google Scholar

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93 Jote, supra note 13, at 304.Google Scholar

94 Id.Google Scholar

95 10 ILM 289 (1971), arts 7, 13 & 15.Google Scholar

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97 On the other hand, the European Convention avoids the issue of compensation by requiring that “restitution should be subject to the law of the requested state.”Google Scholar

98 When in early 1980s, the UNESCO Secretariat convened a meeting to review the function of the Convention, art. 7 was among of the provisions mostly criticized, see Evans, supra note 96, at 654.Google Scholar

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100 Supra note 45, at 146.Google Scholar

101 Done at Rome, June 24, 1995. The Convention was approved by 37 States, five were against and seventeen states abstained, including the United States; 34 ILM 1322 (1995).Google Scholar

102 Id.Google Scholar

103 Id.Google Scholar

104 Art. 3, ¶ 2, of the Convention.Google Scholar

105 Id. art. 4, ¶ 1.Google Scholar

106 Id. art. 4, ¶ 4.Google Scholar

107 Id. art. 3, ¶ 3.Google Scholar

108 The United States was unsuccessful in seeking an option for Member States which have become parties to the 1970 Convention not to enforce the rules of the Convention calling for application of foreign export law. See H. S. Burman Introductory Note on International Institute for the Unification of Private Law (UNIDROIT): Final Act of the Diplomatic Conference for the Adoption of the Draft Unidroit Convention on the International Return of Stolen or Illegally Exported Cultural Objects, supra note 101, at 1322.Google Scholar

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111 M. C. Bourlogiannis & V. Morris, International Decisions, Autocephalous Greek-Orthodox Church of Cyprus v. Golberg & Feldman Fine Arts, 86 Am. J. Int'l. L. 128, 133 (1992).Google Scholar

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113 For historical background and an analysis of the historical, moral and legal arguments put forward by both parties see C. Hithens, The Elgin Marbles: Should They be Returned to Greece (1988; see also, Jote, supra note 13.Google Scholar

114 Washington Post (Feb. 1, 1996), at 1.Google Scholar

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117 Attorney-General of New Zealand, v. Ortiz, 2 W.L.R. 809 (H.L. 1983), acid's 2 Q.B. 349 (Eng. C.A. 1982).Google Scholar

118 The District Court's judgment was made on Aug. 3, 1989 (717 F Supp 1374). The appeal judgment on Oct. 24, 1990.Google Scholar