Countering

Sophie Delepierre and Marina Schneider
based on provisions relating either to theft, or to illegal export: per Article 3(2), objects
are considered stolen ‘where consistent with the law of the State where the excavation
took place.’ Article 3(2) as well as Articles 5(3)(a), (b) and (c) also apply to objects
from archaeological excavations. The choice of procedure is largely determined by how
difficult it is to meet the burden of proof in a particular case.
The UNIDROIT Convention represents a compromise reached by addressing the
various legitimate concerns involved. On the one hand, lies the importance of legal
safeguards for market actors as well as for public and private collections, which is taken
into account through the requirement of due compensation when due, and by the clearly
set out non-retroactivity clause (Article 10). The need for legal safeguards is also satisfied
by the relatively short statute of limitations on bringing an action to demand restitution.
On the other hand, by designating a subset of cultural property to which applies a much
longer statute of limitations (75 years), and in some cases, no limitations at all, the text
takes into account the material and moral interests of the ‘exporter’ States and, more
broadly, those of public collections, religious or cultural institutions, and the protection
of archaeological and architectural heritage. The same exception to the statute of
limitations is extended to sacred objects and communally important cultural objects of
tribal or indigenous communities, bearing witness to a more inclusive dialogue among
all cultures. The interests of exporter States are also taken into account in Article 4(2)
providing for ‘all reasonable efforts’ to be made to ensure that compensation be paid by
those responsible for illicit trafficking, rather than legitimate title holders or requesting
States.
A clear influence
Beyond the mandatory implementation of States Parties to the Convention of 1995, the
principles expressed by the Convention, especially the notion of due diligence, have been
adopted or recognized by the jurisprudence and incorporated into national legislation
of States that are not Parties to the Convention, as is the case in Switzerland (Articles
16 and 24 of the Federal Act on the International Transfer of Cultural Property of 2003,
or CPTA) and the Netherlands (new Article 3(87) of the Dutch Civil Code). These two
States signed the Convention but did not subsequently ratify it mainly due to resistance
from the art market. This has been called ‘the Convention of 1970 plus option’.
At the European Union level, the revisions the Directive 2014/60/EU of the European
Parliament and of the Council of 15 May 2014 relating to the return of cultural objects
unlawfully removed from the territory of a Member State and amending Regulation (UE)
No. 1024/2012, incorporate, twenty years later, several features from the UNIDROIT
Convention. Among the most significant features, the burden of proof regarding the
exercise of due diligence to the possessor, as well as the criteria for due diligence, are
taken, almost word for word, from Article 10 of the UNIDROIT Convention. The 28
Member States of the European Union have until the end of 2015 to enact domestic
legislation in compliance with the Directive. This should remove one of the principal
arguments raised by critics of the UNIDROIT Convention.
Universality of the international conventions: increasing the number of ratifications
The international conventions are conceived with universal application in mind, and thus
the Secretariats of international organizations are called upon to develop communication
tools that encourage States to ratify these international instruments. Although the
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