By Dr. Derek Fincham*
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| Looters at Iraqi site of Isin, May 2003. Photo: U.S. Dept. of Defense |
On Friday, May 19, the Committee of
Ministers of the Council of Europe will meet to open a new treaty for
signatures on a new Convention on Offences relating to
Cultural Property. Given that the
Council of Europe now has 47 member states, including both Russia and Turkey,
the impact of this new Convention could be immense. This is particularly true given
that the member states of the Council of Europe include art-acquiring states,
transit states, and states with ancient monuments. The Convention may even allow any non-Council
state to sign on to the Convention. The work of this draft Convention could
catapult the member states of the Council of Europe to the head of the pack in embracing
the complementary international conventions aimed at stemming the illicit trade
in cultural property.
The final text of the draft Convention
has, at the time of writing, not been made public. I was able to have a look at
a nearly-finished version of the text at a meeting of international legal
experts at a Conference at IMT in Lucca earlier in 2017. One of the most outstanding
aspects of the draft Convention is its focus on regulating all levels of the
trade in cultural objects, including looters, traffickers, and end-of-the-chain
art sellers and buyers. This encompassing approach will lead – I suspect – to
better effective policing of the illicit trade in cultural objects and will
serve to protect and aid the good actors in the art trade who are abiding by
the law but have been suffering due to the unfair competition provided by
illicit traffickers.
This Convention, which has been
referred to as both the Nicosia agreement, and the Blood Antiquities Convention
joins a growing array of international instruments that deal with cultural
heritage. Those include the 1954 Hague Convention for the Protection of Cultural Property in the
Event of Armed Conflict, which directed its provisions at safeguarding art and
heritage during armed conflict. The subsequent 1970 UNESCO Convention on the Means of Prohibiting and Preventing the
Illicit Import, Export, and Transfer of Illicit Cultural Property served to
orient public international law to the problem of illicit cultural property and
raised the profile of the problem of the illicit trade in works of art and the
destruction and looting of cultural heritage. The 1995 UNIDROIT Convention worked to craft a model set of rules for private
law amongst buyers and sellers of works of art and antiquities which may be
illicit.
The Council of Europe’s new Convention
emerges in this context to carry forward the lessons of those Conventions, to
offer solutions to the problem of the illicit trade in antiquities—a problem
which is diffuse,
varied, and requires a cohesive
regulatory response.
Controlling
the Exportation of Cultural Objects
One particularly useful aspect of the
Draft Convention is the prohibition on Export, distinguishing it from a
similar, problematic aspect of the European Council Regulation. One of the
flaws with the European Council Regulation on the export of
cultural goods is its different
treatment of regulation of the trade in cultural objects from Member States and
other non-member states or third countries. Article 2(2) requires Member States
to check whether goods that have come from another Member State were moved from
one Member State to another in a way that is “lawful and definitive.” Due to
some technical differences in language, the current Council Regulation prevents
Member States from having the same checks for objects from Member States as
from non-Member States which may be non-EU in origin because Article 2 does not
include this “lawful and definitive” language from its scope. Article 5 of the
Draft Convention effectively avoids any of this difficulty. I read the draft
Convention then to mean that the Convention erects safeguards to protect
against theft, illegal excavation, and illegal export of all cultural objects,
irrespective of whether the object was illegally exported from a Member State
or some other third country.
Measures
at the domestic and international levels
Another noteworthy aspect of the draft
Convention are Articles which erect concrete measures to establish inventories
which are publicly accessible; introduce import and export procedures subject
to specific certificates; to establish records of transactions; and to promote
consultation and information across State boundaries. These measures – if
properly implemented and funded – have an important and critical function which
will do a great deal to make the efforts to stem the trade in illicit cultural
property more effective. It is my hope that these procedures would allow the
investigation into whether a work of art which has travelled through a number
of individual States was properly given an export and import certificate in all
of these individual states. And if not, a proper investigation and penalty
regime could be erected which would serve to effectively disincentivize the
illicit transfer of cultural objects across State borders. By erecting a system
by which investigators can check the various exports of an object, it would be
possible to both trace an object back ideally to its nation of origin, or
failing that, to allow an investigator to use the export violations which have
potentially occurred in transit states to secure a successful investigation,
resulting either in the return of the object or in the prosecution of culpable
individuals.
Conclusions
The merits of any multilateral
Convention such as this will always be dependent on the political will and the
resources devoted to its implementation. Given the challenges facing the world’s
cultural heritage, both in terms of intentional destruction, and the looting of
sites to finance illegal activity, the moment is now for a strong Criminal
Convention. Its renewed emphasis on regulating exports takes account of the
multinational character of the international trade in cultural heritage, its
emphasis on information sharing and collaboration can effectively combat the opaque
nature of certain aspects of the art trade, and will serve to work around any
deficiencies present in the domestic law of other third party nations. The
draft convention comes at a dangerous moment for so much of the world’s
cultural heritage, and I am optimistic about its capacity to meet this
challenge head-on.
*Dr. Fincham writes about the illicit
trade in cultural property, he teaches writing, art law, and admiralty law at
South Texas College of Law Houston. He regularly blogs at www.illicitculturalproperty.com
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