Saudi Commission for Tourism and Saudi Commission for Tourism and AntiquitiesAntiquities

International Symposium International Symposium on theon the

Recovery of AntiquitiesRecovery of Antiquities

Riyadh, 10th – 14th February 2012Riyadh, 10th – 14th February 2012

““Saudi Archeological Saudi Archeological Masterpieces through Masterpieces through the Ages” exhibition the Ages” exhibition

inaugurated on 25 January inaugurated on 25 January 2012 in the Pergamon 2012 in the Pergamon

Museum in Berlin,Museum in Berlin,

(after Paris, Barcelona and Saint (after Paris, Barcelona and Saint Petersburg) Petersburg)

International claims for the International claims for the restitution and return of cultural restitution and return of cultural

objectsobjects--

UNIDROIT CONVENTION ON STOLEN UNIDROIT CONVENTION ON STOLEN OR ILLEGALLY EXPORTED CULTURAL OR ILLEGALLY EXPORTED CULTURAL

OBJECTSOBJECTS (Rome, 24 June 1995)(Rome, 24 June 1995)

Why a new Convention ??

Unsatisfactory answers given by the non Unsatisfactory answers given by the non conventional law conventional law (protection of the good faith (protection of the good faith acquirer)acquirer)

International conventions must therefore take over International conventions must therefore take over from common law, but …from common law, but …

Existing conventions not satisfactory as far Existing conventions not satisfactory as far as private law aspects of the protection of as private law aspects of the protection of cultural objects are concerned cultural objects are concerned (good faith, time (good faith, time limitations, court jurisdiction…)limitations, court jurisdiction…)

The UNIDROIT ConventionThe UNIDROIT Convention

is a very good example of co-operation is a very good example of co-operation between States and international between States and international organisations organisations

adopts a highly constructive approachadopts a highly constructive approach

It applies to claims of an international It applies to claims of an international character for the restitution of stolen objects character for the restitution of stolen objects and the return of illegally exported cultural and the return of illegally exported cultural objectsobjects

Definition of cultural objectsDefinition of cultural objects UNESCO 1970 (art. 1) and UNIDROIT 1995 UNESCO 1970 (art. 1) and UNIDROIT 1995

(art. 2) (art. 2) share the same definitionshare the same definition (importance and (importance and categories)categories)

Article 2Article 2……. cultural objects are those which, on religious or secular . cultural objects are those which, on religious or secular grounds, are of importance for archaeology, prehistory, history, grounds, are of importance for archaeology, prehistory, history, literature, art or science and belong to one of the categories listed literature, art or science and belong to one of the categories listed in the in the AnnexAnnex to this Convention to this Convention..

An important differenceAn important difference objects must not be “specifically designated” by the State objects must not be “specifically designated” by the State

to benefit from the protection given by the 1995 to benefit from the protection given by the 1995 ConventionConvention

The restitution of stolen objectsThe restitution of stolen objects

The principleThe principle

The possessor of a cultural object which has been The possessor of a cultural object which has been stolen shall return itstolen shall return it (Article 3(1))(Article 3(1))

Two accessory rulesTwo accessory rules

1) 1) Time limitationsTime limitations2) Right to payment of a 2) Right to payment of a reasonable compensationreasonable compensation for the for the

acquirer who exercised acquirer who exercised due diligencedue diligence

Article 4(4) - Article 4(4) - In determining whether the possessor In determining whether the possessor exercised due diligenceexercised due diligence, regard shall be had to all the , regard shall be had to all the circumstances of the acquisition, including […]circumstances of the acquisition, including […]

The return of illegally exported The return of illegally exported cultural objectscultural objects

The principleThe principle-- Removal of the object … contrary to the law Removal of the object … contrary to the law regulating the regulating the export of cultural objects (Article 5(1))export of cultural objects (Article 5(1))

-- The export significantly impairs a scientific or The export significantly impairs a scientific or historic interest, historic interest,

ororthe object is of significant interest for the requesting the object is of significant interest for the requesting

State State (Article 5(3))(Article 5(3))

The conditions for returnThe conditions for return-- Time limitationsTime limitations-- Compensation or other possibilitiesCompensation or other possibilities

Archaeological objectsArchaeological objectsPreamblePreamble

Deeply concerned by […] the irreparable damage […] and in particular by the pillage Deeply concerned by […] the irreparable damage […] and in particular by the pillage of archaeological sites and the resulting loss of irreplaceable archaeological, of archaeological sites and the resulting loss of irreplaceable archaeological, historical and scientific informationhistorical and scientific information

Illicit excavation = theftIllicit excavation = theft……...., a cultural object which has been unlawfully excavated or lawfully excavated but , a cultural object which has been unlawfully excavated or lawfully excavated but unlawfully retained shall be considered stolen, when consistent with the law of the unlawfully retained shall be considered stolen, when consistent with the law of the State where the excavation took place State where the excavation took place (Article 3(2))(Article 3(2))

Article 5(3)Article 5(3)

[…] the removal of the object significantly impairs […]:[…] the removal of the object significantly impairs […]:

a)a) the physical preservation of the object or of its context;the physical preservation of the object or of its context;b)b) the integrity of a complex object;the integrity of a complex object;c)c) the preservation of information of, for example, a scientific or historical the preservation of information of, for example, a scientific or historical character;character;d)d) the traditional or ritual use of the object by a tribal or indigenous the traditional or ritual use of the object by a tribal or indigenous community,community,

or establishes that the object is of significant importance for the requesting State.or establishes that the object is of significant importance for the requesting State.

traditional or ritual use of the object by traditional or ritual use of the object by a tribal or indigenous communitya tribal or indigenous community

PreamblePreamble DEEPLY CONCERNED by the illicit trade in cultural objects and the irreparable damage DEEPLY CONCERNED by the illicit trade in cultural objects and the irreparable damage

frequently caused by it, both to these objects themselves and to the cultural heritage frequently caused by it, both to these objects themselves and to the cultural heritage of national, tribal, indigenous or other communities, and also to the heritage of all of national, tribal, indigenous or other communities, and also to the heritage of all peoples, …peoples, …

Article 3(8)Article 3(8) … … a claim for restitution of a sacred or communally important cultural object belonging a claim for restitution of a sacred or communally important cultural object belonging

to and used by a tribal or indigenous community in a Contracting State as part of that to and used by a tribal or indigenous community in a Contracting State as part of that community's traditional or ritual use, shall be subject to the time limitation applicable community's traditional or ritual use, shall be subject to the time limitation applicable to public collections.to public collections.

Article 5(3)(d)Article 5(3)(d) … … the removal of the object from its territory significantly impairs one or more of the the removal of the object from its territory significantly impairs one or more of the

following interests:following interests: (d)(d) the traditional or ritual use of the object by a tribal or indigenous the traditional or ritual use of the object by a tribal or indigenous

community,community,

Article 7(2)Article 7(2) the provisions of this Chapter shall apply where a cultural object was made by a the provisions of this Chapter shall apply where a cultural object was made by a

member or members of a tribal or indigenous community for traditional or ritual use by member or members of a tribal or indigenous community for traditional or ritual use by that community and the object will be returned to that community.that community and the object will be returned to that community.

No retroactive applicationNo retroactive applicationThe Convention only applies to objects stolen or The Convention only applies to objects stolen or

illegally exported after its entry into forceillegally exported after its entry into force

BUTBUT

itit in no wayin no way confers any approval or legitimacy confers any approval or legitimacy upon illegal transactions of whatever kind which upon illegal transactions of whatever kind which may have taken place before the entry into force of may have taken place before the entry into force of the Convention the Convention

nor nor limits any right or claim outside the framework limits any right or claim outside the framework of the Convention for the restitution or return of the Convention for the restitution or return (bilateral agreement, agreements between (bilateral agreement, agreements between institutions, UNESCO Intergovernmental Committee institutions, UNESCO Intergovernmental Committee …)…)

ImplementationImplementation

Political and moral opportunityPolitical and moral opportunity

Importance of international co-Importance of international co-operation operation (the Convention establishes (the Convention establishes common, minimum rules)common, minimum rules)

Status of the ConventionStatus of the Convention

Status of the ConventionStatus of the Convention 32 States Parties 32 States Parties

Afghanistan, Argentina, Azerbaijan, Bolivia, Brazil, Cambodia, Afghanistan, Argentina, Azerbaijan, Bolivia, Brazil, Cambodia, China, Croatia, Cyprus, Denmark, Ecuador, El Salvador, China, Croatia, Cyprus, Denmark, Ecuador, El Salvador, Finland, Gabon, Greece, Guatemala, Hungary, Iran, Italy, Finland, Gabon, Greece, Guatemala, Hungary, Iran, Italy, Lithuania, New Zealand, Nigeria, Norway, Panama, Paraguay, Lithuania, New Zealand, Nigeria, Norway, Panama, Paraguay, Peru, Portugal, Romania, Slovakia, Slovenia, Spain, SwedenPeru, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden

3 new accessions (instruments to be 3 new accessions (instruments to be deposited)deposited)Algeria, Angola, ColombiaAlgeria, Angola, Colombia

Decisions to become Party already takenDecisions to become Party already takenBotswanaBotswana, , Ireland, UzbekistanIreland, Uzbekistan

ECOSOC 2008/23 ResolutionECOSOC 2008/23 Resolution

« « need, where appropriate, to strengthen and need, where appropriate, to strengthen and fully implement mechanisms for the return fully implement mechanisms for the return or restitution of cultural property […] »or restitution of cultural property […] »

« 4. « 4. EncouragesEncourages Member States asserting Member States asserting State ownership of cultural property to State ownership of cultural property to consider means of issuing statements of consider means of issuing statements of such ownership with a view to facilitating such ownership with a view to facilitating the enforcement of property claims in other the enforcement of property claims in other States; »States; »

UNESCO - UNIDROITUNESCO - UNIDROIT

Article 3(2) 1995 ConventionArticle 3(2) 1995 Convention

An unlawfully excavated cultural object = a An unlawfully excavated cultural object = a stolen object, when consistent with the law stolen object, when consistent with the law of the State where the excavation took place.of the State where the excavation took place.

Has the legislation claiming State Has the legislation claiming State ownership really the effect claimed, in ownership really the effect claimed, in particular for undiscovered particular for undiscovered archaeological objects? archaeological objects?

19 – 22 June 201219 – 22 June 2012, UNESCO , UNESCO Headquarters, ParisHeadquarters, Paris

19 June – 19 June – UNIDROIT’s first meeting of a UNIDROIT’s first meeting of a committee to examine the practical committee to examine the practical application of the Conventionapplication of the Convention

20-21 June – 20-21 June – UNESCO’s meeting of UNESCO’s meeting of States Parties to the 1970 ConventionStates Parties to the 1970 Convention

22 June – 22 June – 18th meeting of the UNESCO’s 18th meeting of the UNESCO’s Committee of governmental expertsCommittee of governmental experts

UNIDROITUNIDROIT

Via Panisperna 28Via Panisperna 2800185 Roma (Italy)00185 Roma (Italy)

Tel. +39 06 69 62 142Tel. +39 06 69 62 142Fax +39 06 69 94 13 94Fax +39 06 69 94 13 94

e.mail: e.mail: m.schneider@unidroit.org

www.unidroit.orgwww.unidroit.org