The 1970 Convention
The 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property urges States Parties to take measures to prohibit and prevent the illicit trafficking of cultural property. It provides a common framework for the States Parties on the measures to be taken to prohibit and prevent the import, export and transfer of cultural property.
The return and restitution of cultural property is central to the Convention and its duty is not only to remember but to fundamentally safeguard the identity of peoples and promote peaceful societies whereby the spirit of solidarity will be strengthened.
Thus, the 1970 Convention is fully in line with the Sustainable Development Goals defined in the United Nations 2030 Agenda.
The historical context
By the 1950s, more States were gaining independence. These young nations sought to create an international treaty to combat the illicit trafficking of cultural property. Their concern was mainly related to the growth of the black market during this time and, in particular, to the dismemberment of monuments and ancient sites to meet the demand.
The 1970 Convention was thus submitted to the 16th session of the General Conference of the Organization in 1970 and adopted on the14th of November that year.
This Convention has made UNESCO a pioneer in the fight against the illicit trafficking of cultural property.
Principles
Prevention
The 1970 Convention gives a central role to prevention. Essential to the fight against illicit trafficking of cultural property, prevention can in particular consist of :
- the regular establishment of inventories;
- the establishment of export certificates;
- the application of controls and approval of traders;
- the application of criminal or administrative sanctions;
- the organization of information and education campaigns.
Restitution
Articles 7 and 13 of the 1970 convention provide the provisions for restitution.
For objects inventoried and stolen from a museum, public or religious monument, or a similar institution, article 7 paragraph (b) (ii), provides that States Parties should undertake appropriate measures to seize and return any cultural property stolen and imported. Article 13, states that parties are responsible at the national level in term of restitution and cooperation.
International cooperation
One of the guidelines of the 1970 Convention is the strengthening of international cooperation between States Parties.
Article 9 of the Convention commits States Parties to participate in any concerted international operation. It provides for the possibility of more specific actions within the framework of international cooperation such as the negotiation of bilateral treaties on the basis of Article 9 or the control of the export, import and international trade of cultural property.
In order to be more effective in the fight against the illicit trafficking of cultural property, UNESCO asked the International Institute for the Unification of Private Law (UNIDROIT) to study private law questions that are not directly dealt with by the 1970 Convention. The Convention on Stolen or Illegally Exported Cultural Objects (1995), supplements that of l970 in terms of private law.
For cases of return or restitution that do not fall under the preceding provisions, such as objects stolen from private property or coming from illicit excavations or not yet listed, bilateral negotiations between States are encouraged, according to Article 9 of the Convention.
The UNESCO Intergovernmental Committee (ICPRCP) can also be solicited to facilitate bilateral negotiations between States concerning requests for the return and restitution of cultural property. The return or restitution of cultural property will therefore be carried out in the spirit of the 1970 Convention.
States Parties
To date, the 1970 Convention has been ratified by 140 states.
Ratification of the Convention by countries which are or have been hubs for illicit trafficking allows for joint efforts to combat illicit trafficking, which is part of the dynamic of international cooperation specific to UNESCO and the 1970 Convention.
The Convention entered into force on 24 April 1972 with respect to States which deposited their instruments of ratification, acceptance, approval or accession on or before 24 January 1972. The Convention enters into force three months after a State deposits its instrument of ratification, acceptance or accession.
States Parties should:
- Adopt protection measures in their territories (art. 5) :
elaborate draft appropriate national legislation
establish national services for the protection of cultural heritage
promote museums, libraries, archives
establish national inventories
encourage adoption of codes of conduct for dealers in cultural property
implement educational programmes to develop respect for cultural heritage
- Control movement of cultural property (art. 6 to 9) :
introduce a system of export certificates
prohibit the export of cultural property unless it is accompanied by an export certificate
prevent museums from buying objects exported from another State Party without an export certificate
prohibit the import of objects stolen from museums, religious institutions or public monuments
penal sanctions to be imposed on any person contravening these prohibitions
emergency import bans may be adopted when the cultural heritage of a State party is seriously endangered by intense looting of archaeological and ethnological artefacts (Afghanistan, Iraq, Syria, etc.)
require art dealers to maintain a register of the exact origin of each object they purchase
- Return stolen cultural property (art. 7):
at the request of the State Party of origin, another State Party will seize and return cultural property on its territory stolen from a museum, religious institution or public monument
the request has to be made through diplomatic channels
the object has to be documented as being part of the inventory of the institution the requesting
State has to pay just compensation to an owner who has purchased the object in good faith or holds a title which is valid according to national law
the requesting State has to provide all the evidence to support its claim
National reports
States Parties must submit to the Organization - on the dates fixed by the General Conference of UNESCO - a report on the legislative and administrative provisions which they have adopted ; and other measures taken to implement the Convention (article 16). In October 2003, Resolution 32C/38 of the 32nd session of the General Conference of UNESCO fixed the periodicity of the reports at four years.
These reports illustrate the measures taken to implement the Convention, the progress made and the obstacles encountered. They are reviewed by the Subsidiary Committee. During its seventh session (22 and 23 May 2019), the Subsidiary Committee revised these reports, which were submitted for the 2019 periodic report cycle. The analysis report can be viewed here.
In addition, the Operational Guidelines concerning the implementation of the 1970 Convention recall the binding nature for States Parties to present these periodic reports. These guidelines emphasize that the monitoring, control and exchange of information that these reports allow, play an important role in the implementation of the Convention.
Previous National reports by States Parties and other Member States
Operational guidelines
It is necessary to learn from the best practices of the States Parties to guide the implementation of the 1970 Convention. Operational Guidelines best reinforce the 1970 Convention by identifying the best means of achieving the objectives of the Convention.
The third Meeting of States Parties (18-20 May 2015) adopted Operational Directives by Resolution 3.MSP 11.
UNIDROIT Convention (1995)
The 1995 UNIDROIT Convention was adopted by the Diplomatic Conference in Rome on 24 June 1995. This legal instrument was drawn up at the request of UNESCO with a view of developing a uniform minimum corpus of rules of private law relating to the international trade of art. It was intended to supplement the provisions of public law contained in UNESCO’s 1970 Convention.
As of February 2020, the Convention has 48 Contracting States and 9 other States have signed but not yet ratified it.
Other applicable international legal instruments
Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict: currently 133 States Parties; provides for the return of cultural property illegally exported from occupied territories
European Union Directive 2014/60/UE: applicable among the 28 Member States of the EU, it provides for a specific procedure for the return of illegally removed cultural property and introduce the notion of due diligence
Commonwealth Scheme: establishes a procedure for the return of stolen or illicitly exported objects within the Commonwealth; model legislation has been drafted which the 54 Commonwealth Member States may use as a basis for a national legislation.