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Restitution

Unidroit lawyers meet for international agreement on restitution of stolen works of art

Stumbling blocks: attempts to define “national treasure” and abolition of passage of title in “good faith” purchases

Delegations from the fifty-three members of Unidroit (The International Institute for the Unification of Private Law) as well as ten invited non-member states spent 20 to 29 January in Rome discussing a short but meaty draft convention.

They are labouring to work out an international agreement for the restitution of stolen and illegally exported works of art and cultural goods. The convention is wider in scope than any similar European Community measure could be and aims to be more effective than the controversial 1970 Unesco Convention. Richard Crewdson, a London lawyer and expert in cultural property law, says that there should be enough data to redraft the text for the next session, probably at the end of this year and again early in 1993. Then they hope to reach an agreement allowing a final text to be presented to the governments by 1994.

The draft convention defines a “cultural object” as “any material object of artistic, historical, spiritual or other cultural significance” (Art. 2). For some delegations, this is far too loose, because it leaves to the courts the decision as to whether the object claimed falls within its parameters. While it is likely, therefore, to be made more descriptive, according to Crewdson it is improbable that monetary valuations will be introduced because in many cases these have little meaning. For instance, what would be of immense value to the Maoris would be of very little value to the South American Indians.

There was also hot discussion of the part of the convention which aims to define what a “national treasure” is—that is, which cultural goods illegally exported are eligible to be reclaimed (Art. 5). For unlike the 1970 Unesco Convention, Unidroit lays down an “objective test”, rather than relying on whatever definition of “national treasure” is current in the state from which the object has been exported illegally. This “objective test” is fairly restrictive and therefore is difficult for countries, such as Italy or Turkey, which have blanket export prohibitions, to accept.

According to the Unidroit draft, an object illegally exported from one country is to be returned only if its export damages clearly defined interests: first, if the item’s removal impairs the physical preservation of its context, or if it is part of a greater whole, such as an altarpiece; second, if its removal hinders the acquisition of scientific or historical information; third, if the object is used by a living culture, for example, in religious or tribal cults, and fourth, if it is of “outstanding cultural importance” to the country from which it has been illegally exported.

The third stumbling block is the principle on which the restitution of stolen cultural goods should be based (Art. 3,1). The current draft says, with no further qualification: “The possessor of a cultural object which has been stolen shall return it”. “This is a volte-face for civil law countries [the continental European countries, among others]”, says Crewdson. This principle is taken from common law countries (Britain and the U.S., for example) in which, when a stolen object is sold, the purchaser does not acquire a title, because the seller has no title to pass on. Therefore the purchaser as a rule is not entitled to keep the object and must return it without compensation to the original owner. In civil law countries, however, provided that the object has been acquired in good faith, the purchaser acquires title. An unfortunate example of this was the funerary effigy of a knight stolen from St Mary the Virgin, Burghfield, Berkshire, in 1978. It was rediscovered at the Ghent Antiques Fair, and action was taken through Interpol for it to go into custody of the Court in Bruges. But because the Belgian dealer had bought it in good faith, to recover the effigy the parish had to recompense him the purchase price plus costs. Had the statue been found in the United Kingdom, the dealer would have had to give it back without compensation.

In the draft, the sugaring on the pill for civil law countries comes with the provision that the purchaser of a stolen object is “entitled to fair and reasonable compensation” provided that he “exercised the necessary diligence when acquiring the object” (Art. 4). In establishing whether he did so, the circumstances of the acquisition will be examined, including whether he “consulted any accessible register of stolen cultural objects”. The latter however will not be more than a fig leaf unless registers become truly international, comprehensive and easily accessible.

The Convention also lays down the time span within which claims can be made. In the case of a stolen object, the claim can be brought to a court within thirty years from the theft and within three years from the discovery of the location or possessor of the object (Art. 3,2). This measure could be a sticking point for the United Kingdom, since English law provides for a limitation period of six years from the date of acquisition of the stolen object (Limitation Act1980).

In the case of the return of illegally exported cultural goods, the claim can be made within twenty years from the export date and within five years from the discovery of the location and possessor of the object (Art. 7,b). The cost of returning the cultural object will be borne by the country requesting the return (Art. 8,3). Furthermore, the convention shall not be retroactive (Art. 10).

The final article (Art. 11) is likely to be extensively redrafted if not deleted because it is perceived by many as weakening the convention, as it allows individual countries to apply their own regulations. For instance, while the convention is not retroactive, this article allows the application of the convention “notwithstanding the fact that the theft or illegal export of the cultural object occurred before the entry into force of the convention for that State”.

It is possible that a new article will be added laying down that any clandestinely excavated object should be treated automatically as stolen.

The advantages of a working international convention on these matters are self-evident. It is doubtful, however, whether the lawyers of Unidroit are more nimble drafters that those of the E.C., who have already found it difficult to conjure up a draft on the restitution of illegally exported goods acceptable to a mere twelve countries.