Berlin, November 1, 2010

Manlio Frigo

Università degli Studi, Milano

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Importation, exportation or transfer of goods in violation of national or international law rules aimed at ensuring:

the protection of the ownership of cultural property;the conservation of its integrity;the conservation of the links with a State or a territorial community.

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The notion of illicit traffic concerns: 1. stolen cultural property 2. cultural property illicitly

exported (in violation of the relevant national legislation)

3. cultural property lawfully exported but not re-imported within the due date in the territory of the State of origin;

The illicit charachter is determined : 1. by the domestic applicable law 2. by international law

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1. Restrictive legislations v. Liberal legislations;

2. Impact of law rules concerning the movement of goods:

possession vaut titre principle nemo plus iuris transferre potest quam ipse

habet principle3. Impact of conflict of law rules (private int.

law) : law applicable to the contract law applicable to the property rights (ius in

re)→ (lex rei sitae) 4

Application of the lex rei sitae: different outcomes in similar situations:

Republic of Ecuador v. Danusso (Tribunal Turin, 22 february 1982);

French Ministry of Culture v. Italian Ministry of Culture and De Contessini (Italian Court of Cassation, 23 november 1995)

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Purchase a non domino: different outcomes in similar situations, common law Countries case law:

Winckworth v. Christie (1980, QBD);Kunstsammlungen zu Weimar v. Elicofon (1981,

Eastern D.C., New York);Islamic Republic Iran v. Berend (2007, QBD);Islamic Republic Iran v. Barakat (2007, CA);

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Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 1954), UNESCO;

Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, 1970, UNESCO);

Convention On Stolen od Illegally Exported Cultural Objects (Rome, 1995, UNIDROIT);

Convention on the Protection of Underwater Cultural Heritage (Paris, 2001, UNESCO, article 14);

European Convention on the Offences Relating to Cultural Property (Delphes, 1985, Council of Europe);

European Convention on the Protection of the Archaeological Heritage (Revised) (La Valetta, 1992, Council of Europe);

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Regulation 116/2009 (formerly 3911/92) on the Export of Cultural Goods: aimed at ensuring that export of cultural goods from the EU territory are subject to uniform controls;

Directive 93/7 on the Return of Cultural Objects

Unlawfully Removed from the Territory of a Member State: establishes a restitution procedure for cultural objects.

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The first multilateral treaty dedicated to the protection of cultural property and to their restitution in case of armed conflict;

The Convention and its 1954 and 1999 Protocols prevent the exportation of cultural property from an occupied territory and provide for the return of such property to the previously occupied territory;

In force since 1956123 States Parties (I Protocol 100, II Protocol 58)

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The Greek-Orthodox Autocephalous Church of Cyprus v. Goldberg, (US Court of Appeals [7th circuit], 27 October 1990);

The Greek-Orthodox Autocephalous Church of Cyprus v. Lans (District Court of Rotterdam, 4 February 1999);

Is restitution of cultural property jeopardized by international conventions? 10

In force since 1972

120 States Parties

Aims at protecting «cultural property», i.e. “property which on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science» and which belongs to the categories of article 1;

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The States Parties undertake:To take the necessary measures, consistent with

national legislation, to prevent museums and similar institutions within their territory from acquiring cultural property originating in another State Party which has been illegally exported after the entry into force of this Convention (article 7.a);

To prohibit the import of cultural property stolen from a museum or a religious or secular public monument or similar institution in another State Party after the entry into force of this convention (article 7.b.1);

At the request of the State Party of origin, to take appropriate steps to recover and return any such cultural property imported after the entry into force of the convention (article 7.b.ii) and to admit actions for recovery of lost or stolen items of cultural property brought by or on behalf of the rightful owners (article 13.c).

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Consistency with national legislations of the States Parties;

The convention is basically conceived as an instrument bound to spread its effects at a dipl0matic level;

Non self-executing character of its rules (Italian Court of Cass. 24 Nov. 1995 - Cour d’Appel Paris 5 avril 2004, Cour de Cass., 20 September 2006, République fed. de Nigéria c. de Montbrison);

Difficulties in granting judicial restitution when the applicable law gives protection to the bona fide purchaser (France, article 2279 c.c., Italy, article 1153 c.c.).

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In force since 199830 States PartiesDeparture from ordinary rules granting protection

to the bone fide possession (articles 3, 4, 5);Uniform law rules concerning lapse of time

(déchéance) (3 years, articles 3, 5) and of statute of limitations (prescription) (50 years, articles 3.3, 5.5);

Creation of an autonomous title of jurisdiction (article 8);

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Restitution of stolen cultural objects to the owner (articles 1.a, 3, 4);

Return of cultural objects illicitly removed to the State (articles 1.b, 5, 6);

Reversal of the burden of proof of good faith;The proof of «due diligence» when acquiring the

object gives right to payment of «fair and reasonable compensation» (articles 4, 6).

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Multilateral International Conventions (UNESCO, UNIDROIT); Role of the Intergovernmental

Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation

European Union law rules;Police cooperation (data banks, inventories);Bilateral International Conventions;National Legislations;Codes of Ethics.

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Bilateral Conventions : (articles 9, 15 1970 UNESCO Convention)

U.S.-Peru 1997, amended 2002 U.S.-Canada 1997 U.S.-Bolivia, 2001, renewed 2007 U.S.-Italy, 2001, renewed 2006 U.S. –Nicaragua,2000,renewed 2005 U.S.-Cyprus ,2002 Switzerland-Peru, 2006 Switzerland-Italy, 2006 Switzerland, Greece, 2006 Cambodia, Thailand, 2000 Italy-China, 2006

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National Legislations:

Italian Landscape and Cultural Heritage Code (Legislative Decree 22 January 2004, n° 42), article 67: possibility of loans to foreign museums, in application of cultural agreements, for a 4 years period;

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Codes of Ethics:

ICOM Code of Ethics, 2004 (International Council of Museums);

CINOA Code of Ethics (International Confederation of Art and Antique Dealers), 2006;

Guidelines on Loans of Antiquities and Ancient Art, AAMD, 2006 (Association of Art Museum Directors);

International Code of Ethics for Archivists, ICA, 1996 (Internationa Council on Archives);

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Merci de votre attentionTHANK YOU

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