Saudi Commission for Tourism and Antiquities International Symposium on the Recovery of Antiquities Riyadh, 10th – 14th February 2012

“Saudi Archeological Masterpieces through the Ages” exhibition inaugurated on 25 January 2012 in the Pergamon Museum in Berlin, (after Paris, Barcelona and Saint Petersburg)

International claims for the restitution and return of cultural objects - UNIDROIT CONVENTION ON STOLEN OR ILLEGALLY EXPORTED CULTURAL OBJECTS (Rome, 24 June 1995) (Rome, 24 June 1995)

Why a new Convention ?? Unsatisfactory answers given by the non conventional law (protection of the good faith acquirer) Unsatisfactory answers given by the non conventional law (protection of the good faith acquirer) International conventions must therefore take over from common law, but … Existing conventions not satisfactory as far as private law aspects of the protection of cultural objects are concerned (good faith, time limitations, court jurisdiction…) Existing conventions not satisfactory as far as private law aspects of the protection of cultural objects are concerned (good faith, time limitations, court jurisdiction…)

The UNIDROIT Convention is a very good example of co-operation between States and international organisations is a very good example of co-operation between States and international organisations adopts a highly constructive approach adopts a highly constructive approach It applies to claims of an international character for the restitution of stolen objects and the return of illegally exported cultural objects

Definition of cultural objects UNESCO 1970 (art. 1) and UNIDROIT 1995 (art. 2) share the same definition (importance and categories) UNESCO 1970 (art. 1) and UNIDROIT 1995 (art. 2) share the same definition (importance and categories) Article 2 …. cultural objects are those which, on religious or secular grounds, are of importance for archaeology, prehistory, history, literature, art or science and belong to one of the categories listed in the Annex to this Convention. An important difference An important difference objects must not be “specifically designated” by the State to benefit from the protection given by the 1995 Convention objects must not be “specifically designated” by the State to benefit from the protection given by the 1995 Convention

The restitution of stolen objects The principle The possessor of a cultural object which has been stolen shall return it (Article 3(1)) Two accessory rules 1) Time limitations 2) Right to payment of a reasonable compensation for the acquirer who exercised due diligence Article 4(4) - In determining whether the possessor exercised due diligence, regard shall be had to all the circumstances of the acquisition, including […]

The return of illegally exported cultural objects The principle The principle -Removal of the object … contrary to the law regulating the export of cultural objects (Article 5(1)) -The export significantly impairs a scientific or historic interest, or the object is of significant interest for the requesting State (Article 5(3)) The conditions for return The conditions for return -Time limitations -Compensation or other possibilities

Archaeological objects Preamble Deeply concerned by […] the irreparable damage […] and in particular by the pillage of archaeological sites and the resulting loss of irreplaceable archaeological, historical and scientific information Illicit excavation = theft ….., 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 State where the excavation took place (Article 3(2)) Article 5(3) […] the removal of the object significantly impairs […]: 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, or establishes that the object is of significant importance for the requesting State.

traditional or ritual use of the object by a tribal or indigenous community Preamble 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 of national, tribal, indigenous or other communities, and also to the heritage of all peoples, … 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 of national, tribal, indigenous or other communities, and also to the heritage of all peoples, … Article 3(8) … 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 community's traditional or ritual use, shall be subject to the time limitation applicable to public collections. … 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 community's traditional or ritual use, shall be subject to the time limitation applicable to public collections. Article 5(3)(d) … the removal of the object from its territory significantly impairs one or more of the following interests: … the removal of the object from its territory significantly impairs one or more of the following interests: (d)the traditional or ritual use of the object by a tribal or indigenous community, (d)the traditional or ritual use of the object by a tribal or indigenous community, Article 7(2) 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 that community and the object will be returned to that community. 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 that community and the object will be returned to that community.

No retroactive application The Convention only applies to objects stolen or illegally exported after its entry into force BUT it in no way confers any approval or legitimacy upon illegal transactions of whatever kind which may have taken place before the entry into force of the Convention nor limits any right or claim outside the framework of the Convention for the restitution or return (bilateral agreement, agreements between institutions, UNESCO Intergovernmental Committee …)

Implementation Political and moral opportunity Political and moral opportunity Importance of international co-operation (the Convention establishes common, minimum rules) Importance of international co-operation (the Convention establishes common, minimum rules) Status of the Convention Status of the Convention

Status of the Convention 32 States Parties 32 States Parties Afghanistan, Argentina, Azerbaijan, Bolivia, Brazil, Cambodia, China, Croatia, Cyprus, Denmark, Ecuador, El Salvador, Finland, Gabon, Greece, Guatemala, Hungary, Iran, Italy, Lithuania, New Zealand, Nigeria, Norway, Panama, Paraguay, Peru, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden 3 new accessions (instruments to be deposited) 3 new accessions (instruments to be deposited) Algeria, Angola, Colombia Decisions to become Party already taken Decisions to become Party already taken Botswana, Ireland, Uzbekistan

ECOSOC 2008/23 Resolution « need, where appropriate, to strengthen and fully implement mechanisms for the return or restitution of cultural property […] » « 4. Encourages Member States asserting State ownership of cultural property to consider means of issuing statements of such ownership with a view to facilitating the enforcement of property claims in other States; »

UNESCO - UNIDROIT Article 3(2) 1995 Convention An unlawfully excavated cultural object = a stolen object, when consistent with the law of the State where the excavation took place. An unlawfully excavated cultural object = a stolen object, when consistent with the law of the State where the excavation took place. Has the legislation claiming State ownership really the effect claimed, in particular for undiscovered archaeological objects?

19 – 22 June 2012, UNESCO Headquarters, Paris 19 June – UNIDROIT’s first meeting of a committee to examine the practical application of the Convention 19 June – UNIDROIT’s first meeting of a committee to examine the practical application of the Convention June – UNESCO’s meeting of States Parties to the 1970 Convention June – UNESCO’s meeting of States Parties to the 1970 Convention 22 June – 18th meeting of the UNESCO’s Committee of governmental experts 22 June – 18th meeting of the UNESCO’s Committee of governmental experts

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