Illecit trafficking

In International Law the central issue in the fight against illicit traffic in cultural property is the regulation of the obligation of restitution of those cultural objects belonging to the cultural heritage of a State which have been stolen and illicitly exported.

Generally speaking, there is no rule binding on all states which obliges a State to return stolen works of art transferred into the territory of that State from another State; with the exception of those works stolen in war times.

Illicit trafficking is addressed through the negotiation of multilateral treaties. Each State that ratifies those treaties or conventions undertakes the obligation to return cultural property belonging to the cultural heritage of another State, but only under certain conditions, which vary depending on the convention considered and which are not very stringent in practice, except for the most recent Convention signed in Rome in 1995.

These are the main multilateral conventions in force:

1954 First Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict – applicable to cultural property illicitly exported during an armed conflict – .

1970 UNESCO Convention 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

1976 Convention of San Salvador on the Protection of Archaeological, Historical and Artistic Heritage of the American Nations

1995 UNIDROIT Convention 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects.

Obligations to return cultural property are binding only for the States parties to the conventions in their reciprocal relationships and only for the goods that are included in the definition of “cultural property” provided for in each conventional instrument. The entry into force of those conventions cau3sed an evolution in the regulation of the circulation of goods, introducing special substantive law rules, with the result of giving preference to the interest to protect the national cultural heritage and to return cultural property to its Country of origin, thus creating a derogation to the general rule governing the transfer of ownership and to the principle of free circulation of goods.

A special regime is in force in EU Law: the Directive 93/7, of 15 March 1993, on the return of cultural objects unlawfully removed from the territory of a Member State, which obliges all Member States to return cultural property to the State to which it belongs.

UNIDROIT CONVENTION

The most advanced level of protection against illicit traffic has been reached by the conclusion of the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, signed in Rome on 24 June 1995, and entered into force in 1998 among 29 States, including Italy (Law of 7th June 1999 n. 218)

This Convention’s most noticeable feature is that it introduced a precise obligation to return in the two cases of theft and illicit export of property belonging to the national cultural heritage of a Contracting State.

The action to recover is enforceable only in respect of the properties that are included in the Annex to the Convention, found in the territory of another Contracting State.

As regards to the relationship of Contracting States which are EU Member States (namely: Cyprus, Greece, Finland, Lithuania, Portugal, Slovakia, Slovenia, Spain, Romania) EU Law contained in the Directive 93/7 prevails, which also imposes restitution.

The UNIDROIT Convention provides a different regime for stolen and for illicit exported cultural goods.

In case of theft, the principle of automatic restitution applies: “The possessor of a cultural object which has been stolen shall return it” (art. 3, para. 1 Conv.).

In order to obtain restitution it is sufficient that the dispossessed owner, whether a public institution or a private person, proves that a theft has occurred.

Also those cultural objects which have been unlawfully excavated or lawfully excavated but unlawfully retained shall be considered stolen (art. 3, para. 2 Conv.). This provision is important because it also allows recovery of archaeological objects not yet inserted in the inventories of museums.

The obligation to return cultural property outlined by this Convention is due to have a great impact on the legislation of the Contracting States, especially those which protect the good faith purchaser’s position and entitle him to the right of ownership of the stolen property (like the Italian one, see art. 1153 Civil Code)

The possessor of a cultural property illicitly transferred abroad must return it according to the special regulation contained in the Convention, but he has the right to payment of a fair and reasonable compensation, provided that he “neither knew nor ought reasonably to have known that the object was stolen and can prove that he exercised due diligence when acquiring the object” (art. 4, para. 1 Conv.).

As regard to property belonging to national heritage transferred abroad by their rightful owner but in breach of the rules governing export, they can be recovered under the UNIDROIT Convention under certain conditions.

Only the State can act to obtain the return of an item, as long as it can demonstrate that the removal of the object from its territory significantly impairs one or more of the “cultural” interests listed in Art. 5, namely: (a) the physical preservation of the object or of its context; (b) the integrity of a complex object; (c) the preservation of information of, for example, a scientific or historical character; (d) the traditional or ritual use of the object by a tribal or indigenous community.

In the hypothesis described in letter c) “preservation of information” also includes those archaeological goods which are smuggled from illegal excavations or from legal excavations but transferred abroad without permission.

The possessor of a cultural object who acquired the object after it was illegally exported shall be entitled, at the time of its return, to payment by the requesting State of fair and reasonable compensation, provided that the possessor neither knew nor ought reasonably to have known at the time of acquisition that the object had been illegally exported. Regard shall be had to the circumstances of the acquisition, including the absence of an export certificate required under the law of the requesting State (art. 6 Conv.)

Instead of compensation, and in agreement with the requesting State, a possessor who is required to return the cultural object to that State may decide to retain ownership of the object or to transfer ownership, against payment or for free, to a person of his/her choice residing in the requesting State who provides the necessary guarantees (art. 6 para 3 Conv.)