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/
Manlio Frigo - National systems of protection of cultural heritage: cooperation at national and international levels
1. NATIONAL SYSTEMS OF
PROTECTION OF CULTURAL
HERITAGE: COOPERATION AT
NATIONAL AND INTERNATIONAL
LEVELS
Manlio Frigo
University of Milan
2. Illicit Traffic, an attempt of definition
Importation, exportation or transfer of goods in
violation of national or international law rules aimed at
ensuring:
the protection of the ownership of cultural property;
the conservation of its integrity;
the conservation of the links with a State or a territorial
community.
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3. Remarks
The notion of illicit traffic concerns:
1. stolen cultural property
2. cultural property illicitly exported (in
violation of the relevant national legislation)
3. cultural property lawfully exported
but not re-imported within the due date in the
territory of the State of origin;
The illicit character is determined :
1. by the domestic applicable law
2. by international law
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4. The national level: domestic
legislations’ approach
• 1. Restrictive legislations v. Liberal legislations;
• 2. Impact of law rules concerning the movement of
goods:
• possession vaut titre principle
• nemo plus iuris transferre potest quam ipse habet
principle
• 3. Impact of conflict of law rules (private int. law) :
• law applicable to the contract
• law applicable to the property rights (ius in re)→
(lex rei sitae)
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5. Restitution: the application of ordinary
rules on movement of goods and its
unsatisfactory performance/1
• Application of the lex rei sitae: different
outcomes in similar situations:
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9. Restitution: the application of ordinary
rules on movement of goods and its
unsatisfactory performance/2
• Purchase a non domino: different outcomes in similar
situations, common law Countries case law:
• Winckworth v. Christie (1980, QBD);
• Kunstsammlungen zu Weimar v. Elicofon (1981, Eastern
D.C., New York);
• Islamic Republic Iran v. Berend (2007, QBD);
• Islamic Republic Iran v. Barakat (2007, CA);
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10. The European Union level
Regulation 116/2009 (formerly 3911/92) on the Export
of Cultural Goods: aimed at ensuring that export of
cultural goods from the EU territory are subject to
uniform controls;
Directive 93/7 on the Return of Cultural Objects
Unlawfully Removed from the Territory of a Member
State: establishes a restitution procedure for cultural
objects.
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11. The 1970 UNESCO Convention
Consistency with national legislations of the States Parties;
The convention is basically conceived as an instrument
bound to spread its effects at a dipl0matic level;
Non self-executing character of its rules (Italian Court of
Cass. 24 Nov. 1995 - Cour d’Appel Paris 5 avril 2004, Cour de
Cass., 20 September 2006, République fed. de Nigéria c. de
Montbrison);
Difficulties in granting judicial restitution when the
applicable law gives protection to the bona fide purchaser
(France, article 2279 c.c., Italy, article 1153 c.c.).
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12. The 1995 UNIDROIT Convention
• Restitution of stolen cultural objects to the owner
(articles 1.a, 3, 4);
• Return of cultural objects illicitly removed to the State
(articles 1.b, 5, 6);
• Reversal of the burden of proof of good faith;
• The proof of «due diligence» when acquiring the object
gives right to payment of «fair and reasonable
compensation» (articles 4, 6).
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13. The combined multiple action
• Multilateral International Conventions (UNESCO,
UNIDROIT); Role of the Intergovernmental Committee for
Promoting the Return of Cultural Property to its Countries
of Origin or its Restitution in case of Illicit Appropriation
• European Union law rules;
• Police cooperation (data banks, inventories);
• Bilateral International Conventions/contractual
agreements;
• National Legislations;
• Codes of Ethics.
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15. The combined multiple action
• National Legislations:
• Italian Landscape and Cultural Heritage Code (Legislative
Decree 22 January 2004, n° 42), article 67: possibility of
loans to foreign museums, in application of cultural
agreements, for a 4 years period;
• British Statute 2009 [Holocaust-Return of Cultural
Heritage-Act] made it possible the deaccessioning upon
approval by the Spoliation Advisory Panel→2010 Return to
the Archdiocese of Benevento of a missal of the XII century
.
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16. The combined multiple action
Codes of Ethics:
ICOM Code of Ethics, 2004 (International Council of Museums);
CINOA Code of Ethics (International Confederation of Art and Antique Dealers), 2006;
Guidelines on Loans of Antiquities and Ancient Art,
AAMD, 2006 (Association of Art Museum Directors);
International Code of Ethics for Archivists, ICA, 1996 (Internationa Council on Archives);
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17. MONITORING IMPLEMENTATION
• UNIDROIT→ Questionnaire 2012
• EU→3 Reports on application Directive 93/7
• UNESCO→2012 Report of Secretariat on
implementation 1979 UNESCO Convention
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18. MONITORING IMPLEMENTATION
• UNESCO, some statistics:
• 27 reports in 1978 - 48 reports in 2011
• 1978= 38 ratifications – 2011=120 ratifications
• Reports include third States
• 44,7% in 1978 – 37,5% in 2011
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19. MONITORING IMPLEMENTATION
• 1. Implementation in the national legal system
and organization of services
• 2. Inventories and identification
• 3. Measures taken to prevent illicit excavations
• 4. Measure taken to control export and import of
cultural property
• 5. Implementation through bilateral agreements
• 6. Educational means and raising of public
awareness
• 7. Cooperation with other international agencies
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20. 1. Inventories and identification
• Are there generally accepted
criteria/standards?
• How many States can refer to a system of
classification, inventory, identification of items
forming part of the cultural heritage?
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21. 2. Measures taken to prevent illicit
excavations
• Some domestic legislations consider that
cultural objects not yet discovered lies with
the public authorities;
• Expert Committee on State Ownership of
Cultural Heritage appointed by UNESCO &
UNIDROIT→Model Provisions on State
Ownership of Undiscovered Cultural Property
(2011).
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22. 3. Measure taken to control export
and import of cultural property
• Project by the ILA Cultural Heritage Law
Committee↓
• Reports on Export control systems at
national level (2012)
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23. 4. Cooperation with other
international agencies
• INTERPOL
• UNESCO Resolution June 2012→UNIDROIT
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28. CONCLUSIONS
• Agreements/contracts of cultural cooperation:
• Use of the alternative instruments for the
settlement of disputes;
• No implications from the diplomatic viewpoint;
• No assumptions of responsibility;
• Statement of the good faith principle in the
implementation of the agreements;
• Statement of ethical principles.
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