UNESCO and UNIDROIT: a Partnership against Trafficking in Cultural Objects

Abstract

The subject of illicit traffic in cultural objects arouses high emotions – nor were these lacking in negotiations for the new UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. Strong feelings sometimes distort the view of those affected by them: during the eight years of active negotiation various views were expressed about the relationship between UNESCO and UNIDROIT on this topic which were quite mistaken. For example, it was said by some that the initiative for a UNIDROIT Convention on the topic was a manoeuvre by “art importing” countries to weaken the UNESCO Convention. Others thought that the negotiations were a kind of extension of the UNESCO Convention at the behest of the “exporting” States. Some thought that the UNESCO Convention of 1970 and the developing UNIDROIT text were incompatible, and many were curious as to the views of UNESCO on it. The reality was quite different to any of these assumptions. It was at UNESCO’s request that UNIDROIT took up the matter of illicit traffic in cultural movables. Illicit traffic is an enormously complex problem. UNESCO knew this very well since it had been active against the practice since its early days. The Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (the Hague Convention) 1954 controls the removal and illegal export of cultural property from occupied territory. There are currently 73 States Parties to the Protocol, including a number of European States with substantial art markets and collecting interests such as Belgium, France, Germany, the Netherlands and Switzerland. In view of the amount of cultural property taken in recent conflicts in Afghanistan, Cambodia, from the occupied area of Cyprus, from Iraq, Kuwait and territories once part of the former Yugoslavia, this Protocol remains highly relevant. Already this instrument raised important questions of both public and private law: indeed it was the insistence of some States on maintaining the separation between public and private law which led to the relegation of the repatriation provisions to a Protocol, rather than their inclusion in the main text of the Convention. In 1970 the General Conference of UNESCO adopted the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 which deals with theft and illegal export generally. There are currently 82 States Parties to that Convention. During the negotiations the differences in private law between systems which protected the “good faith” acquirer