The MULTILATERALS PROJECT, The Fletcher School, Tufts University These notes were provided by a participant at the recent international conference to adopt a Convention on Stolen or Illegally Exported Cultural Objects. The text of the convention as adopted has been posted to both the ICOMOS gopher and to the Multilaterals Project, Fletcher. (See below for addresses.) UNIDROIT CONFERENCE, 7-24 JUNE 1995 The Diplomatic Conference to adopt the draft UNIDROIT Convention dealing with stolen and illegally exported cultural heritage took place in Rome at the invitation of the Italian government from 7 to 24 June 1995. About 70 national delegations, over 200 persons, took part. States with basically "exporting" interests outnumbered the so- called "art-market" or "importing" States. Only about 10 per cent of the delegates had taken part in any of the preceding negotiations which had taken place laboriously over the previous ten years, through three meetings of a Study Group of Experts and four meetings of government experts. States had before them a fairly polished draft which was a compromise of interests and of legal principles. This compromise had been discussed vigorously at least seven times before, and it was unlikely that any new ideas were going to emerge which had not been already thoroughly argued and tested. Some few difficult points remained to be settled, and it was of course open to delegations to rediscuss any issue. However, the first two weeks of the diplomatic conference showed a worrying development: although there was a clear determination of the meeting to approve the text of a Convention, many Delegations were not realistic in pressing for positions which would ensure that the "art-importing" countries could not sign the Convention. Thus the first two readings in Commission resulted in indicative (simple majority) votes in all cases for the views of the "exporting" States. In the final week of the Conference, the Mexican Delegation, convinced that it was important to have not only a Convention, but a Convention which would be accepted by those countries who could have a major impact on illicit traffic by changing the legal rules on acquisition of cultural objects, put together an informal negotiating group of concerned States from both sides. It included Canada, Egypt, France, Greece, Italy, Mexico, Netherlands, Spain, Switzerland, Turkey and the United States. These negotiations were extremely difficult and not concluded until 1 p.m. on the last day of the conference. They resulted in a number of delicate compromises and a text which most European States can now proceed with. The major outstanding issues for these negotiations were the question of time limitation of claims, non-retroactivity, and the definition of objects which would be returned after illegal export. For time limitation a complex formula has been derived. This was perhaps the most difficult issue of all, and the one most likely to have caused failure. The present text is seen by European States as the most generous which they could contemplate and which will still be challenging, though not impossible, to have adopted in their national legal systems. "Exporting" States, many of whom do not have any concept of time limitation of claims in their national legal systems, wanted to have no time limitation in the Convention. This was for them an emotive issue, and they were aware that they would have to defend their decision to their domestic constituencies. "Importing" States, however, made it clear that aspects of legal certainty and security of transactions, which were key domestic issues for them, made it impossible to accept any periods longer than those permitted in Article 3(3) and (5) and Article 5(5). In return for acceptance of longer periods for claims than they wished, certain "importing" States insisted on an express provision on non-retroactivity. There had never been, at any time, any prospect of starting negotiations for, let along achieving, a convention which had retroactive effect. The normal rule of treaty interpretation is that treaties are not retroactive and an express provision to this effect is not necessary (there is none in the 1970 UNESCO Convention, which is likewise not retroactive). However, early versions of the text included an express non- retroactivity clause. The omission of this clause at a later stage had, however, aroused the suspicions and misinterpretations of dealers, who suggested that the Convention was therefore intended to be retroactive. The omission of the clause had in fact been in response to concerns by the "exporting" states that the express non-retroactivity clause might be read by their national publics as legitimizing prior takings. As many of these countries had lost their most important cultural property by war, punitive raid, or colonialism before 1995, such an interpretation put them in an impossible position. The problem was solved by including Article 10. Paragraphs 1 and 2 specify non-retroactivity; paragraph 3 makes it clear that the status of prior transactions has not been changed by the adoption of the new Convention. The third essential point was the maintenance of a restriction on the range of illegally exported cultural objects which had to be returned (_all_ stolen cultural objects have to be returned). These limits are set out in Article 5(3) which has been retained with only one minor change from the draft text. This compromise text was presented as a package to the full conference and voted on within the closing minutes of the conference. It was adopted 37-5-17, thus achieving the two-thirds majority of Delegations present and voting. At the signing ceremony, 10 States signed immediately (Burkino Faso, Cambodia, Cote d'Ivoire, Croatia, France, Guinea, Hungary, Italy, Lithuania and Zambia. Georgia has since signed.) Signatures must be ratified before the Convention comes into force for a State, and five States need to be a party before the Convention comes into force at all. Many States who abstained in the vote and have not yet signed have made it clear that they intend to present it to their Parliaments for adoption. A number need to prepare national legislation before they can undertake the obligations of the Convention. The achievement of the Convention in a form which can at last entice "importing" States into a collaborative effort to reduce illicit traffic is a major step forward in international cooperation to stem an illegal trade which is doing increasing irreversible damage around the world and a tribute to the painstaking work of a decade of UNIDROIT and UNESCO to reach a balanced legal instrument which will have practical impact on the problem. ================================================================ The text of the Convention is available from the Multilaterals Project, Fletcher School of Law & Diplomacy -- http://www.tufts.edu/fletcher/multilaterals.html and from the gopher of the International Council on Monuments and Sites (ICOMOS) -- gopher://gopher.icomos.org/11/.icomos/treaties For further information and documentation, apply to: UNIDROIT Via Panisperna, 28 Rome, Italy Tel: +39 6 67 86 724 Fax: +39 6 69 94 13 94 ================================================================= This report is being distributed through the 'usicomos' mailing list, the e-mail network of the US National Committee of the International Council on Monuments and Sites, 1600 H St., N.W., Washington, D.C. 20006. 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