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Fifty years on: the meaning of the 1970 UNESCO Convention

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Institute of Art and Law 18 June 2020
By Alexander Herman

Amidst the sad turmoil (for some) and the uncertainty (for all) brought on by the pandemic and the resultant lockdown, it is perhaps more forgivable than usual to miss an important anniversary. I am referring here to the fact that 2020 marks 50 years since the adoption of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, an international instrument that set out to curb the illicit trade in looted cultural property, including – though not exclusively – antiquities. This anniversary is particularly special because we are now twice as far removed from the Convention’s enactment as the Convention was from the end of the Second World War (1945) and the establishment of the modern international order. In addition, the last 25 years have seen the Convention really come into its own. There might in fact be far more to celebrate at the 50th anniversary than there had been at the 25th, when the future of the Convention looked most uncertain indeed.

UNESCO, whose General Assembly had originally adopted the Convention on 14 November 1970, was planning a number of events throughout the world to mark this auspicious anniversary. As a result of the pandemic, however, these have now been scaled back to a single commemorative symposium to take place in Berlin this November. This is understandable, but it is perhaps worth at least the present blog post to investigate the impact of the Convention during its lifespan and the meaning it still holds today. If our post-coronavirus world is going to be ‘default digital’, then perhaps a digital exploration is precisely what is required.

The needs and interests that gave way to the Convention began to coalesce in the 1960s during a series of meetings at UNESCO’s headquarters in Paris. UNESCO had already pushed through an earlier convention that sought to protect cultural property during wartime and occupation: the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. The question then arose how the international community could best protect heritage plundered in times of peace, involving illegal excavation and the placing of finds on the international market. The end product was seen at the time as an attempt to rebalance the international landscape in favour of ‘source States’, allowing them to reclaim stolen artefacts with greater ease from ‘market States’.

In truth, the Convention itself never went quite so far. Many of its provisions are watered down, the inevitable result of enacting a convention that has to please many States at once. Much of the Convention is concerned with guidance for source States on monitoring and controlling the heritage in their own territory and ‘soft law’ aimed at establishing best practice and co-operation between States. As for the restitution of unlawfully exported property, the teeth of the Convention are found within a single subsection, Article 7(b). Let us consider this provision in greater detail.

UNESCO Headquarters in Paris

Article 7(b) places an obligation on signatory States (the main target being market States) to prevent the import into their territory of cultural property that had been stolen from a museum, monument or similar institution within another signatory State (and listed on an inventory). This applies only from the point at which the Convention came into force within both of the relevant States. If such material does make it onto the territory of one State, then that State will have the obligation to a requesting State to return it, subject to compensation being paid by the requesting State to the current lawful possessor. A detailed commentary on the Convention can be found in Patrick O’Keefe’s Protecting Cultural Objects: Before and After 1970.

The limitations of this provision are rather obvious. First of all, it doesn’t apply to unlawfully excavated antiquities. Such material wouldn’t be considered ‘stolen’ from a museum, monument or similar institution, and certainly wouldn’t have been on any ‘inventory’ since, until discovery, the material was unknown. Secondly, it doesn’t apply to items stolen from private residences. Thirdly, it doesn’t apply to cultural patrimony export laws, thus allowing most material exported without an export licence under its net. Fourthly, it operates only from the point at which both States have implemented the Convention, so it is not retrospective. And finally, any attempt at recovery by the source State would usually involve a fairly hefty payout to the lawful possessor of the property, something that can be a real challenge for the cash-strapped countries of the developing world.

After the Convention came into force in 1972, the market States really had nothing to worry about. And yet many deferred or refused to join the Convention, protesting that it was ‘statist’ and too supportive of ‘cultural nationalism’ (see John Henry Merryman’s article). This view, we can now say, was completely unfounded for the reasons stated above: the obligations on market States were in fact very slim. And who could really protest against stolen property (usually publicly owned) being returned to its home institution? Interestingly, when the United Kingdom considered ratifying the Convention in the early 2000s, its assembled group of experts concluded that English law already complied with the obligations of the Convention, subject only to the application of English limitation periods. Based on this reading, the UK could in theory have ratified the Convention many years earlier without having to upset the settled traditions of English law. (Scots law was not considered by the expert group, but would likely lead to a similar conclusion.)

And so, the list of countries that signed the Convention within the first two decades was to be expected: Ecuador, Nigeria, Cameroon, Cambodia, Mexico, Iraq, Brazil, Egypt… and so on. They were source States, hoping in vain to recover looted antiquities from abroad in whatever way they could. The only real exceptions were Canada (1978), though hardly a market State, the US (1983), though only via partial implementation, and Australia (1989), like Canada not a major market State. Where were the big players like the UK, Switzerland, Germany and Japan? Nowhere to be found at first.

This is why the Convention’s first quarter-century was rather disappointing. That particular anniversary, 1995, coincided with the passing of another convention, this one devised by Unidroit, the international organisation that seeks to harmonise private laws across jurisdictions. The Unidroit Convention on Stolen or Illegally Exported Cultural Objects (1995), if anything, was a recognition of the perceived failure of the 1970 Convention. The 1970 Convention had only 80 States Parties at the time and, as we know, these were almost all source States – so not much use if those States tried to recover stolen material at the international level. The Unidroit Convention went much further than the wimpy Article 7(b) referred to above in that it could apply to illegally exported cultural objects, as well as material stolen from either a State or a private entity. It also defined the material at issue (‘cultural object’) more broadly than the 1970 Convention, which referred to ‘cultural property’ and required it to belong to a closed list of categories. A commentary by Lyndel V. Prott on this Convention can be found here.

So, if we had been standing with a glass of celebratory champagne in 1995, it likely would have been to toast the new Unidroit Convention, not the persistence of the 1970 Convention. But surprisingly the subsequent 25 years have effectively swapped the relative importance of each.

The coffin of Nedjemankh was returned to Egypt from the Metropolitan Museum of Art, New York

Around the year 2000 things began to change. American courts started to give serious effect to the laws of source States when dealing with illicitly traded cultural objects brought into the US. In addition, a number of states began signing bilateral agreements with the US for the protection and restitution of their cultural patrimony pursuant to the federal Convention on Cultural Property Implementation Act. The UK ratified the 1970 Convention in 2002 – and rather tellingly refused to ratify the 1995 Unidroit Convention – as did Japan. Switzerland followed the next year. Germany ratified in 2007, then Belgium and the Netherlands in 2009. Suddenly, there were very few important art trading countries that didn’t at least pay lip service to the 1970 Convention. Today the Convention has 140 States Parties, a list which also includes Luxemburg and, as of 2017, Monaco and the United Arab Emirates (comprising the important art market hubs of Dubai and Abu Dhabi).

The reverberations of the 1970 Convention can certainly be felt today. Prior to the pandemic, it seemed not a month would pass without a major police bust or seizure of illegally trafficked artefacts. Some examples of returns of cultural property from 2019 are: Jordan returning smuggled antiquities to Iraq (February 2019), Italy returning nearly 800 archaeological items to China (March 2019), New York’s Metropolitan Museum returning a valuable gold coffin to Egypt (September 2019), Belgium returning an ancient tombstone to Cyprus (September 2019), Saudi Arabia returning important archival papers to Iraq (2019), Turkey returning Buddhist items to China (November 2019), and the ongoing return of thousands of ancient artefacts purchased for Washington’s Museum of the Bible to Iraq and Egypt – not to mention the recent bust of an antiquities smuggling ring by international investigation authorities, including over 100 arrests, in early May 2020. These may not have been achieved under any specific provision of the 1970 Convention, but they reveal an increased sensitivity to the trade in unprovenanced cultural objects by border services and the police. The Convention will soon be used as a yardstick to assess the contents of import licences and importer statements for those seeking to bring in foreign cultural goods under the new EU Regulation on the Introduction and the Import of Cultural Goods (2019/880), which will come into force over the next five years across the EU.

The Museum of the Bible, Washington DC, is in the process of returning artefacts to Iraq and Egypt

The 1970 Convention has probably had its most visible and practical impact in the museum world, where the 1970 date is seen as a watershed. Almost every major museum in the West now treats ‘1970’ as a hard-line rule and will refuse to acquire material that left its country of origin after that year without full documentation. The 1970 threshold was introduced into many museum codes of ethics in the early-to-mid 2000s and has grown in ethical importance since then. Even courts have taken notice of its wide recognition.

This golden anniversary is therefore worthy of celebration, even if such rejoicing must now be restrained and limited to the online environment (no champagne this time, sadly). The 1970 Convention has a lot to teach us, not simply about the fight against the illicit trade, but also about how the meaning of international instruments can morph over time and how consensus among nations can eventually come about. The Convention was initially championed by those States most in need of international assistance to protect their own heritage, whilst snubbed by the trading nations. But both reactions were perhaps premature: the 1970 Convention itself, for the reasons explained, was no panacea. However, in its establishment of standards for reputable art market players – especially museums – its slow burn effect has been the most effective kind.


https://ial.uk.com/fifty-years-on-unesco-convention/
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