Countering

International Conventions on Illicit Trafficking in Cultural Property
some cases, lack the means to do so. It is in the interest of States to adopt the best possible
national legislation for an effective implementation of the Convention, in order to benefit
from its provisions and, more importantly, to comprehensively protect their heritage.
Prevention is always the best protection. In order to assist the States Parties, UNESCO
and its partner organizations have developed a series of technical tools at the disposal
of States, particularly through the national and regional training UNESCO regularly
organizes 5 . The stated goal of these measures is by no means to restrict the legitimate
trade in cultural property, on the contrary. UNESCO, as a United Nations organization
with mandates both cultural and educational, encourages cultural exchange in all its
forms, insofar as these are fully consensual.
The issue of restitution as concerns stolen cultural property
The second ‘pillar’ of the Convention relates to the restitution of stolen cultural property.
Article 7(b)(ii) of the Convention states that cultural property stolen from a museum or
a religious or secular public monument must be returned to the State from which it was
removed. This rule is, however, subject to several conditions: it must be demonstrated
that the object figures in the institution’s inventory (hence the importance of the
above-mentionned inventory process); the object must have been imported after the
Convention entered into effect in both States Parties involved. Furthermore, the
requesting State must provide ‘just compensation to an innocent purchaser or to a person
who has valid title to that property’. In terms of procedure, requests for restitution must
be sent via diplomatic channels. The requesting State is also obligated to provide all
documents necessary to justify its demand for seizure and restitution.
Together, these criteria make for a relatively limited scope of action, which has
certainly contributed to curtailing the number of restitutions of cultural property under
the auspices of the Convention stricto sensu. Moreover, while the wording of this article
is detailed in some respects, particularly the inventory requirement (which excludes by
itself all archaeological finds exported illegally), it leaves considerable room for variance
in interpretation by experts from differing legal traditions. This tension between stringent
conditions for application and latitude in the wording is evidence of how politically
charged the restitution of cultural heritage is, and how difficult it can be for States to
agree on a text addressing this issue. Should we therefore conclude that the Convention
of 1970 is ineffective when it comes to the restitution of cultural property? Certainly not,
since the Convention has nourished a wealth of thoughtful discussions on international
cooperation both in the realm of culture in general, and issues of restitution in particular.
Over the course of numerous ratifications, and through the development of specialized
legal and technical instruments, the States Parties have expanded the scope of action
for return and restitution that go beyond what the text of the Convention foresees, and
which would not have been possible had it not been adopted.
In 40 years of existence, the 1970 Convention has permitted significant instances of restitution and
helped make cultural property central to cultural cooperation and diplomatic relations.
[Irina Bokova, ‘From Baghdad to Cairo – combating trafficking in cultural property’, in Mondes, Les
cahiers du Quai d’Orsay, n°8, (Autumn, 2011) 81-89.]
Certain requests for return or restitution prove particularly complicated, however,
usually because of highly sensitive political issues. In cases where no bilateral agreement
can be reached, Member States of UNESCO may petition the Intergovernmental
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