The criminalisation of the illicit trade in cultural property

Abstract

This chapter considers the criminalisation of illicit traffic of cultural objects in international law and its impact for domestic law. The regulation of the trade in cultural objects has long been resisted in so-called market States, which host major auction houses and art and antiquities dealers. The lobbying was particularly directed against the enforcement of foreign public laws covering export controls in domestic courts. However, the Security Council’s adoption of resolutions that condemned the pillage of Iraqi and Syrian cultural sites has transformed this debate. These resolutions enunciate an obligation to prosecute in domestic courts which is covers all UN Member States. To examine this development in international law, I focus on two seemingly unrelated, recent events. The first part of this chapter examines the discovery of the horde of artworks held by Cornelius Gurlitt in Germany in 2012. It serves as a reminder not only of the systematic confiscation of artworks by the Nazi regime during the 1930s and 40s, and the complicity of art dealers and auction houses, but its lingering legacy. The lessons learned during the mid-twentieth century which transformed international law including human rights law and cultural heritage protection are revisited in the second part. It details the response of the international community in the twenty-first century to atrocities committed in Iraq and Syria and funded by illicit activities including the looting and trade in cultural objects. In 1943 and 2015, the international community condemned such acts, put those engaged in these activities on notice that they would be held to account, and that these transfers of property would not be recognised as licit.