BALANCING MARKETS, MORALS AND LAW: THE FIGHT TO REGULATE ILLICIT TRAFFICKING IN CULTURAL GOODS AND THE EU REGULATION ON THE IMPORT OF CULTURAL GOODS.
The start of 2019 marks both the end of the European Year of Cultural Heritage and the adoption by the European Parliament of a new Regulation on the import of cultural goods. (1) The aim of the Year of Cultural Heritage was to focus attention on the EU's rich diversity in cultural heritage, (2) as well as on its shadier side: an annual market in illicit trade in cultural property from all over the world worth 3 to 6 billion dollars. (3) Pottery, artwork, jewellery, objects of religious worship, armour and statues from ancient Mayan civilisation (4) or from temples in Cambodia (5) or the Iraqi National Museum (6) are passing through the hands of looters, smugglers, terrorists, and auction houses only to end up on display in European museums, on the shelves of American interior decorators, or in the vaults of private collectors. New objects enter the market every day as legal and illegal excavations continue. (7) The lines between the legal and illegal, moral and immoral aspects of this trade are blurred because of the various dubious practices connected to it at all stages, such as its ties to the drugs and arms trades, terrorism and corruption. (8)
There are many reasons to seek to put a stop to illicit cultural property trafficking, but this requires a concerted international effort. The most important milestones of international law in this effort are the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, (9) and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (10) and, most recently, the new EU Regulation on the Import of Cultural Goods which will require importers to provide evidence that cultural goods have been legally imported into the European Union. (11)
However, the international regimes aimed at protecting cultural property are notorious for their shortcomings. (12) The process towards ending illicit cultural property trafficking by the creation, ratification and implementation of the instruments of international law has been a slow and arduous one. The premise of this paper is that this is due to their being the result of a very difficult balancing act between the different stakeholders, interests and viewpoints in the cultural property world. These are rooted in the complex history and networks of the international art and antiquities trade, where economic interests, human rights arguments and ethical considerations are traded off against each other, resulting in instruments which are largely considered weak and ineffective compromises. As a result, the illicit trade in cultural property has continued to grow every year since the 1970 UNESCO Convention. (13)
This paper aims to deconstruct the elements of compromise which have influenced the drafting and success of legal instruments in the past, in order to frame the creation of the new Regulation in the long-standing divides and debates in the field.
Part I firstly seeks to define illicit cultural property trafficking, considering why it is problematic, and where it fits in the international art market. Part II discusses the ideological divides characterising the cultural property world, and where the relevant actors in the field position themselves in these debates.
Part III discusses the most important milestones in international law aimed at stopping illicit cultural property trafficking: the 1970 UNESCO Convention and the 1995 UNIDROIT Convention. This Part will critically deconstruct them using the elements presented in the first two Parts, in order to demonstrate how they are the result of compromises, and how these compromises have affected their effectiveness. This will answer the second set of research questions: how does established international law frame and counter the illicit trade in cultural property, and how have the contradictions in the cultural property world influenced this system? What balance have the instruments of international law struck between source and market nations, market interests and human rights, cultural property nationalism and internationalism? How successful has the resulting compromise been? This section will pay specific attention to the European context.
The final Part builds on the framework of the previous sections to examine the EU's latest initiative to counter cultural property trafficking, namely the Regulation on the Import of Cultural Goods in the EU. This Part will answer the final set of research questions: how can we frame the EU Regulation in a broader context? To what extent are the predominant debates which influenced past efforts towards regulating illicit cultural property trafficking, significant for the creation of this Regulation? What suggests that the balance struck this time will be different, and what suggests it will merely perpetuate the choices made in the past?
To answer those questions, this paper conducts a review of the relevant literature and incorporates information gleaned from informal interviews, personal discussions and lectures by several experts working in the field of cultural heritage and the art trade.
Discussing the illicit trade in cultural property is necessarily an interdisciplinary endeavour. Since 1969, when a paper by Clemency Coggins turned the eyes of the international community towards the topic of looted cultural property,14 academic efforts have been directed to the study of this trade, conducted, in the first instance, primarily by archaeologists and art historians. Neil Brodie (15) was a leading voice within this field. This body of research was supplemented by ethnographic research into the social realities of illicit cultural property trafficking by anthropologists and other social scientists. (16) In the field of criminology, much attention has been paid to the illicit trade in cultural property. Leading voices such as Bowman (17) and Mackenzie (18) have expanded the discussion by studying it as a form of organised crime, including it in wider criminological debates and connecting it to other forms of organised crime and conflict. Another important voice in this field is Erik Nemeth, (19) who identifies illicit cultural property trafficking as a security issue.
Since the first regulatory efforts in the aftermath of Coggins' paper, significant legal research has also been done in this field. The tone was primarily set by John Merryman in 1986. (20) After that, legal research has approached the issue of cultural property trafficking from various angles related to international public and private law, such as its interconnections with human rights law, international criminal law and humanitarian law. (21) Thus, in order to achieve a complete picture of illicit cultural property trafficking and its interconnections with other forms of organised crime, armed conflict, law and the art world, this paper will consider not only legal perspectives, but also those from fields ranging from criminology to art history, anthropology and other social sciences. It will focus on matters of international and European law to explore in depth how these both reflect and influence the dynamics between source and market nations.
PART I: MARKETS AND MORALS: THE STATE OF THE ILLICIT CULTURAL PROPERTY WORLD
I.1 Cultural Property Trafficking
1.1.1 What is Cultural Property Trafficking?
Cultural objects have had an allure for mankind throughout history, which endures to this day. The trade in cultural property goes back to ancient times. Tellingly, Karl Meyer goes as far as calling tomb robbing 'the second-oldest profession'. (22)
Not only in the context of conquest and warfare has cultural property been moved around. Objects of cultural significance have also changed hands as gifts to foreign dignitaries and as objects of trade. (23) Of course, in ancient times, the goods that today are seen as antiquities moved around in the ordinary course of daily life, as jewellery, architectural material, art objects or funeral objects. The business of trading them was part of general business relations. It was not until more recently that the art and antiquities trade as a specialised business emerged. Art auctions started in the eighteenth century, establishing the art trade as a specialised profession occupied by various actors. (24)
In the development of this trade, innumerable cultural objects have moved around the world throughout the ages, removed from their original finding places, smuggled across borders, traded, shipped, disguised, auctioned, discovered, bought, lent, gifted, ... However, the concept of 'trafficking' is generally understood as:
the illicit import, export and transfer of ownership of cultural property [...] ranging from theft from cultural heritage institutions or private collections, through looting of archaeological sites to the displacement of artefacts due to war. (25)
To speak of an 'illicit trade' means that somewhere in the process from excavation (or discovery) to purchase, something illegal happens. This can be, depending on the legislation in force: theft from collections or museums, illegal excavation, removal during armed conflict or military occupation, illegal exportation or importation of objects, forging documentation, dealing in fakes or forgeries, the illegal transfer of ownership through sale, exchange, donation or legacy, etc. (26) Art theft, looting, forgeries and smuggling fall under the umbrella of 'art crimes', according to Conklin: (27) "criminally punishable acts that involve works of art".
Parellels can be drawn between the illicit trade in antiquities and other transnational crimes such as trafficking in humans or body parts, (28) the illicit arms trade and drug trafficking. (29)
However, there is one major difference: antiquities and art objects are, unlike narcotics for example, a fully legal commodity. Possessing and trading in antiquities is not illegal perse. (30)
Illicit cultural property trafficking represents for some, the "darker side of globalization". (31) Not only because of its connection to conflict and other forms of crime, but mostly because the movement has largely been a one-way street, creating uneven flows of cultural property. (32)
1.1.2 Source Nations and Market Nations
The billions of cultural objects alluded to above have historically flowed from the Global South to the North, from East to West, from developing to developed countries. While Western museums and collections were filled with archaeological finds from former colonies, treasures from wars of the past, souvenirs and objects of scientific interest, there has been no countervailing flow from North to South, from developed to developing countries. (33) This continues to cause great frustration within the affected communities. The uneven flow of cultural property caused Merryman more than 30 years ago to distinguish two broad groups of countries: 'source nations' and 'market nations'. (34)
Source nations are those nations with a wealth of archaeological property, which find themselves on the supply side of the antiquities market. (35) These are the countries from where trafficked cultural artefacts generally originate. (36) These countries are also called 'artefact*rich nations', 'nations of origin' or 'supply nations'. (37) They include States in the Middle East such as Iraq, Jordan, Egypt and Syria, which have seen their rich cultural resources disappear during the colonial era as well as after. The wars and conflicts of recent years have only made this situation worse. Large parts of the African continent have seen similar developments, as the draining of their cultural resources has continued ever since the colonial era. Countries such as Mali, Niger, Burkina Faso and Ghana are only some of the most heavily affected areas. Many Latin American countries also suffer gravely from illicit trafficking in mostly pre-Columbian objects from Peru, Colombia or Equador. Several regions in Asia are also affected. The trade in Khmer objects from Cambodia is one well-known example, but the border region of Pakistan, Afghanistan and India, as well as Thailand and China are source regions for cultural property too. (38) Source countries suffer the greatest loss from looting and antiquities trafficking. However, these are also mostly countries which, owing to their economic development, lack the resources to adequately combat the problem and protect their cultural resources. (39) As Warring puts it: "[c]ultural property leaks out of these source countries like water from a sieve". (40)
The objects largely end up in the market nations. These countries, also called 'purchaser nations', 'collector nations' or 'demand nations', (41) are those which are on the demand side of the trade in cultural property. Their citizens are the primary buyers of the artefacts coming from source nations. (42) The USA and some EU Member States make up the major market nations, but Japan and Switzerland are also among them. (43) It is worth mentioning, in light of the anticipated Brexit, that the UK accounts for over half of the European share of art imports, representing 22.4 per cent of the world share of art imports in 2015, (44) and 66 per cent of the EU art market share by value, or 21 per cent globally, in 2018. (45)
The division into market and source nations is not based solely on the flow of objects from one group to another. It is also based on their very different philosophies, values and economic interests concerning cultural property, which have determined their involvement in the international efforts against illicit cultural property trafficking. For instance, these philosophies have influenced which international agreements they became party to and the strength of their implementation. (46) This issue will be dealt with further below.
Merryman's division into source and market nations is the generally accepted analytical tool to understand the flows of cultural property, but it requires some nuance. Firstly, source and market nations sometimes overlap, as some market nations function as source nations at the same time. One such example is Italy, which is a European nation on the demand side, but at the same time has lost many of its antiquities which are now circulating on the cultural property market. Similarly, the United Kingdom, which is typically considered to be a market nation, found itself on the supply side when it started having problems with illicit excavations using metal detectors. (47) Secondly, Merryman's analysis might be complemented with a third category of 'transit nations' where objects pass through on their way to the market nations. These are often hubs from whose ports objects are shipped and where documents are forged. (48)
I.2 Problematic Aspects
I.2.1 Transnational Organised Crime
Not only does the trade in cultural property exhibit similarities to the arms and narcotics trade and other transnational crimes, it is also often connected to them. This is the result of the evolutions in transnational organised crime, which are best described by Bowman:49 "If transnational crime is a moving target, then it is also a Hydra". By this he means that, as international efforts to curb traditional forms of transnational crimes increase, transnational criminal organisations (TCOs) not only expand their geographic sphere by using all the possibilities of today's globalised world, but also constantly diversify and extend their spheres to include new forms of transnational criminal activities. (50) Many TCOs were already involved in the illicit trade in commodities such as arms, narcotics, humans, body parts, fauna and flora, besides their other traditional forms of transnational organised crime such as extortion, corruption and money laundering. It now appears that the same networks of TCOs have increasingly coupled these activities to include, inter alia, cybercrime and illicit cultural property trafficking, the latter being one of the fastest growing and most attractive of the new money-making ventures of TCOs owing to its accessibility, high demand, difficulty of detection and overlap with a licit 'upperworld'. (51)
In sum, it appears that many of the same criminal networks are behind the illicit trade in antiquities. Although evidence is scarce and anecdotal, we can discern three types of connections between illicit antiquities trafficking and other forms of organised crime. Firstly, stolen or looted cultural goods are used as collateral or means of payment in major drug deals. (52,) Secondly, the antiquities trade is used as a means of laundering money generated from other criminal activities such as drug trafficking, (53) since the increasing risks of detection have made moving smuggled antiquities preferable to trying to move cash, diamonds or gold transnationally. (54) Thirdly, looted antiquities have been discovered in shipments during drug raids, suggesting that cultural goods and drugs are trafficked together from source to market countries. (55)
Organised crime often goes hand in hand with corruption. Police corruption, administrative, political and judicial corruption are important facilitators of many forms of organised crime. (56) Bezlov & Gounev established that countries with a lower GDP, high levels of organised crime, and bad scores on the effectiveness of their government institutions and rule of law are most likely to have issues with corruption.
Many source countries at risk of losing much of their cultural property fall within this category and are known to face high levels of corruption. (57) It is present at all levels of the antiquities trade, from the guards at archaeological sites, to customs officials, and even the highest levels of government. (58) However, it is not only source countries that are confronted with corruption. Bezlov and Gounev describe how some European Member States, notably those at the external borders such as Bulgaria and Greece, might also face customs corruption. (59)
An issue of major concern to the entire cultural property world is the damage done to objects and their environment at the moment of excavation. Not only do increasingly advanced methods such as mechanical digging and the use of bulldozers destroy valuable information in archaeological sites, but treasure hunters have also been known to deliberately deface objects to conceal them for smuggling, to hide sites, and to break up artefacts, behead statues, melt down precious metals, and destroy everything in their way. The damage done to archaeological sites is large-scale and leads to valuable contextual information being lost forever. (60)
This reality was first brought to the world's attention by Clemency Coggins in 1969. Her paper, entitled 'Illicit Traffic of Pre-Columbian Antiquities' (61) provided detailed accounts of the damage done to Mayan artefacts of irreplaceable artistic and scientific value, when they were illicitly looted from their sites in Guatemala and Mexico. Moreover, she traced these objects to European collections and some of America's most respectable museums. These revelations shocked the art world and opened the discussion on the illicit traffic in cultural property. According to many, this spurred the international recognition of the problem, and started the subsequent efforts in fighting the illicit traffic in cultural property. (62)
I.2.4 Conflict and War
Generally speaking, there are two international legal regimes governing cultural property. One seeks to protect cultural property during armed conflict and the other regulates the international trade in cultural property. (63)
The former legal regime deals with issues of destruction of cultural property. This damage can be unintentional, e.g. in the case of collateral damage during military operations or as the result of neglect, but it can also be intentional, i.e. when cultural property becomes a target in itself by armed groups, terrorist groups or warring States (64) such as in the cases of Al Mahdi (65) or Kosovo. (66) Despite the elaborate international law system which was put in place to protect cultural property during armed conflict, revolving mainly around the Hague Conventions, (67) its destruction largely persists. (68) This is the subject of major discussions but will not be dealt with further in this paper.
The latter legal regime is the focus of this paper, but it has important links with conflict and war which are worthy of note. That is, many antiquities and works of art which circulate in the licit and illicit trade in cultural property, originate from conflict areas and war-torn places, and are embedded in these conflicts themselves.
Scholars have established that the link between conflict and illicit cultural property trafficking is threefold: firstly, much of the looting of sites happens during the chaos of war, while archaological sites and museums are left unprotected. The disruption of order caused by violence creates the perfect chaotic conditions for people to loot and smuggle unnoticed or with impunity. Secondly, as part of the 'spoils of war', many cultural artefacts have entered into circulation after having been taken as trophies, used to pay the troops or to humiliate the enemy. (69) This explains, for example, how Egyptian obelisks ended up in ancient Rome as trophies of their conquests in the Mediterranean area. Thirdly, looting and smuggling of cultural property can be used by States or armed groups to finance the hostilities or their regime. (70)
The art world still bears the consequences of Nazi-looted art from the Second World War, (71) and many European museums are filled with the spoils of wars of the past, (72) not least those from the colonial era. (73) This is no different for contemporary conflicts which lead to a largescale loss of cultural heritage. Afghanistan, Cambodia, the Democratic Republic of Congo, and Colombia are only a few examples of heavily affected nations. (74)
I.3 The Cultural Property and Antiquities Market
I.3.1 Black, White and Grey Markets
The illicit trade in cultural properties is not just a black and white story. Rather, the licit/illicit dynamics of the art market are to be seen as a spectrum. Some antiquities are what Bowman calls 'white antiquities'. They have been acquired through authorised excavations and are in the hands of their rightful owner. The 'white' antiquities on the legal end of the spectrum, however, represent only a minor part of the antiquities on the market. Most of them are to be placed on the 'grey' or 'black' ends of the spectrum. 'Grey antiquities' have either been on the market since before there were cultural property laws in place, or for so long that any findspot documentation has long been lost. As a result, they are now considered licit simply because they have been in circulation for so long. Most of those artefacts stem from the colonial era or the 'grand tours' of the nineteenth century. The 'black' end of the spectrum comprises antiquities which have been recently illicitly excavated or illegally removed. (75)
The existence of a fully legal antiquities 'upperworld' makes the crackdown on the illicit antiquities 'underworld' infinitely more difficult. (76) Legal and illegal activities are interconnected and "fit together like a jigsaw puzzle". (77) This is because, in order to be profitable, any illicit stains must be washed away so objects can enter the open market. Therefore, illicit antiquities undergo a complex laundering process. (78) This process makes up the core of the art market dynamic whereby the status of objects shifts from illicit to licit and sometimes back again. This can happen through hiding the provenance of objects at any phase, presenting them as 'grey antiquities' instead of recently looted objects, (79) or by passing them through civil law countries which may favour the good-faith purchaser enabling title to illegally looted or exported objects to be secured more easily, so they can begin to circulate freely and legally on the market. (80) Of course, as Bowman (81) writes: "such laundering changes them not from black to white, but to a distinctive shade of grey with questionable status".
I.3.2 Measuring and Understanding the Cultural Property Market
The cultural property trade is characterised by a high level of secrecy. The traditions of the art market tend to obscure the questionable ways in which certain objects enter the market and have passed from illicit to licit. Disguising or neglecting the provenance of objects happens at all stages of the trade. Art auctions, for example, may serve to obscure the origins of objects because of their discrete practices and nondisclosure, a process known as 'ravalage'. (82)
The paucity and ambiguity of information makes it difficult to properly analyse the cultural property market, to know where objects have ended up, to reconstruct valuable archaeological information, and for rightful owners to locate and retrieve their stolen artefacts. (83) This way, Bowman (84) writes: "the licit upperworld of the antiquities trade obscures its criminal beginnings". It also makes it difficult to assess precisely the number of objects trafficked, or their total value. It is impossible to say where the treasures of ancient and modern societies alike, are scattered throughout the world. To draw up a map of where all the bits and pieces of some famous archaeological sites are to be found would be as interesting as it would be impossible. As with any illicit trade, its exact extent is impossible to assess. (85)
Despite this lack of precise data, some information is available which can give a rough indication of the size of the market and thus, of the problem. (86) Nearly all authors agree that, although precise data are difficult to obtain, the illicit trade in cultural property is a fastgrowing and lucrative market. (87) Whereas throughout the years it was estimated to be the third most lucrative market after narcotics and arms trafficking, Interpol now considers it to be equally lucrative. (88) The financial value of the illicit trade in antiquities and art has been estimated between 3 and 6 billion dollars annually since the 1990s, with UNESCO now confirming that in recent years the value is nearing the 6 billion mark. (89) As a comparison, the licit trade in art and antiquities represents a more than 50 billion dollar annual market. (90) However, as has been discussed above, the two are hard to separate. Between 80 and 90 per cent of cultural property sold on the licit market is said to have illicit origins. (91,)
I.3.3 Economic Inequality
The profits from this market are unevely distributed. It is difficult to obtain information on the prices paid to looters and finders in source countries, but a 2004 account by the archaeologist Joane Farchakh gives an indication of how objects increase in value every time they change hands from looter to transit points to destination market. She documented how the same object's price may increase one hundredfold or more. (92) This confirms other authors' claims that the largest profits are made by the middlemen and market country sellers, starkly contrasting with the minuscule fraction of the final profit that the looters and finders at the source are making. (93) In this sense, Yates (94) writes: "the illicit antiquity trade reinforces, exploits and increases global inequality via a supply model in which the very poor take the most risk for the least gain."
PART II: SETTING THE STAGE FOR AN INTERNATIONAL LEGAL FRAMEWORK: ACTORS AND DEBATES
II. 1 Relevant Actors and Stakeholders
An object passes through many hands from the place where it was buried in a source country to its destination in a market country. The key players in the trafficking of cultural property operate in a complex web, dubbed the 'cultural property world'. (95)
II. 1.1 From Looters, Finders and Thieves to Smugglers and Middlemen
Apart from artists and the original makers of cultural objects, the chain of the (illicit) cultural property trade begins with the finders, looters and thieves who introduce new objects into the market. These can be landowners trying to dispose of inadvertent finds or (semi-)professional bands of robbers illicitly digging in archaeological sites. However, more often than not, they are 'subsistence looters', locals who find themselves in such precarious situations that they turn to looting as a last resort to survive in extreme poverty. (96)
In many source countries, looting is fairly easy as there are many unknown or unexcavated archaeological sites. Many sites are notoriously underprotected by the local governments of underdeveloped countries owing to a lack resources for cultural property protection. (97) Next to pillaging, another way for artefacts to enter the illicit cultural property market is by theft from museums, art collections or churches, (98) storage facilities, tombs and archaeological sites. (99)
After being excavated, an object passes through the many hands of smugglers and middlemen. They are the ones that profit the most from the illicit trade in antiquities. (100)
II. 1.2 Auction Houses, Collectors, Buyers and Dealers
For more than a century, auction houses have been the primary market venues for cultural property. (101) Their position concerning cultural property trafficking might best be described as ambiguous. On the one hand, they have an economic interest in trading antiquities, and some auction houses have been implicated in laundering stolen objects. (102) On the other hand, they have a reputation for trustworthiness to uphold, which has resulted in stricter checks on provenance and due diligence in recent years. (103)
For some years, the role of auction houses as the primary market place to buy and sell cultural property has been eroded. The internet is booming as a platform for the sale of cultural property. This has been applauded for democratising the art trade and making sales, prices and provenance more transparent. However, not everyone is as welcoming of this revolution. Some are sceptical because they claim that the internet makes it much harder to control and regulate the art trade, others because the new level of transparency poses a threat to the way they are used to doing business. (104)
Collectors, art buyers and dealers often argue that their activities benefit the conservation of antiquities (105) and promote the "universal appreciation of human creativity". (106) However, there is also a popular perception that they are eager to protect their economic interests. This is because the trade in cultural property is extremely lucrative. Dealing and collecting is for many not only a passion, but also an investment. (107) In market countries in particular, the influence of lobbies against any legislation that would impose stricter controls on the market should not be underestimated. (108) As for the darker sides of their sector, while many buyers are genuinely unaware of any criminal provenance of certain objects, many more choose to ignore or deny the connection between their own role and the system it sustains. (109)
It should be noted that in recent years, there has been a gradual shift in attitudes at the demand side of cultural property, towards the recognition of the importance of provenance research and due diligence. Slowly but steadily, buyers and dealers in cultural property, including auction houses, are more rigorously checking the origins and documentation of antiquities, because of the reputational benefits of proper provenance and due diligence, and because the increased scrutiny of illicit trafficking has begun to affect the market price of questionable objects. (110)
II. 1.3 Museums
Museums, too, have an ambiguous role in the cultural property world. Museums in the West are full of objects of questionable provenance. (111) More than seven million pieces in the British Museum are contested, (112) for example, among which the famous Elgin Marbles (or Parthenon Marbles). Museums today argue that they conduct thorough investigations and adhere to a code of ethics when it comes to the provenance of their pieces, (113) but there has been more than one scandal involving prominent museums. (114) Their public declarations of ethical goodwill sometimes contradict the reality, as the so-called 'Lydian Treasure' case illustrates. (115) On the other hand, museums can also be victims, as they often experience theft and plunder. (116) Perhaps the most notorious example was the aggressive pillaging of an estimated 15,000 objects from Baghdad's Iraq Museum in April 2003. (117)
II. 1.4 States
States, as well as being victims of art theft or looting, can also be perpetrators of art crimes such as theft and vandalism, sometimes with their own citizens and museums as the victims. They can also be facilitators through negligence. (118) Of course, they are also primary actors in the internatonal efforts to counter illicit cultural property trafficking, albeit not always very effectively. (119) The European Union as a supranational actor has become increasingly important, as the following pages will discuss in more detail.
II. 1.5 Archaeologists and Academia
As Bersin (120) writes: "the need of archaeologists to understand history by finding it where it is hidden does not compete well with the market demand for antiquities". Indeed, the destruction of archaeological sites and the disappearance onto the black market of valuable artefacts is a thorn in the side of archaeologists. (121) Many of them view the trade in antiquities as an evil in itself. (122) According to Merryman:
their logic is simple: if collectors did not collect and dealers did not deal there would be no antiquities market, and if there were no market, the illicit traffic in antiquities would disappear. (123)
An important voice in this respect is ARCA, which brings together many prominent academics and professionals in order to promote interdisciplinary research into art crimes and to advocate against illicit cultural property trafficking. (124)
II. 1.6 UNESCO and Partners
The last major actor in the cultural property world that should be mentioned is UNESCO, the UN body specifically designated for the protection of cultural heritage worldwide. It can be considered the main driving force in the international efforts to curb the illicit trade in cultural property. Its role in the development of international law on illicit trafficking will be discussed in more depth below. In these efforts, it works together with other actors which should be mentioned for the sake of completeness: intergovernmental organisations and NGOs which take an interest in the protection of cultural property, such as UNIDROIT, which deals, amongst other matters, with private law aspects of the illicit traffic in cultural property; INTERPOL, mostly concerning stolen works of art and other criminal aspects of the trade; UNODC (UN Office on Drugs and Crime), because of its links to transnational crime; the WCO (World Customs Union), because customs officials are on the front line of intercepting illicitly trafficked objects; and ICOM representing museums and museum professionals, being the primary ones. (125)
II.2 Predominant Debates on Cultural Property Trafficking
II.2.1 Charged Terminology: What is Cultural Property?
The very task of defining 'cultural property' is the subject of much debate. Terms such as 'cultural patrimony', 'cultural heritage', 'artefacts' and 'antiquities' are often used interchangeably to designate the same categories of objects. Although it might seem like merely an issue of semantics, the use of certain terms is telling of the political stance of their user. (126) While terms such as 'artefacts' or 'antiquities' can be perceived as neutral, the use of others is more nuanced. (127) For example, the term 'cultural patrimony' implies a certain nationalist link. It is in this respect that Greek cultural nationalists will call the 'Parthenon Marbles' a piece of 'cultural patrimony' belonging to Greece, in order to advocate their return to Greece from the British Museum, while the British will rather refer to what they call the 'Elgin Marbles' as 'antiquities' or 'cultural objects'. (128) Equally, as Prott and O'Keefe (129) state, the terms 'cultural property' and 'cultural heritage' should not be used unconsciously, as they carry very distinct ideological loads. Clemency Chase Coggins, for instance, writes that the term 'cultural heritage' connotes cultural objects as a seamless whole, while the term 'cultural property' would mean the isolation of an object from its cultural context. To the term 'cultural heritage' a certain inalienable connection to the source nation is often attached, (130) suggesting that objects could belong to a society, while using the term 'cultural property' connotes individual ownership and the idea that these are objects which can be traded like any other good. (131)
Despite criticism of its use, the term 'cultural property' is used most often in legal literature. (132) The many attempts at defining it reveal that, as with the definition of 'art', it is difficult to agree on any fixed definition which covers the very heterogenous and boundless categories of objects that 'cultural property' could consist of, without being so broad that any and all artefacts would qualify. (133) Merryman summarises it as follows:
Empirically, cultural property centrally includes the sorts of things that dealers deal in, collectors collect, and museums acquire and display: principally works of art, antiquities, and ethnographic objects. (134)
Generally speaking, three main categories of definitions can be distinguished: firstly, open definitions, stating in general terms what is to be understood by cultural goods. Secondly, definitions referring to exhaustive or non-exhaustive lists of goods. Lastly, a combination of an open definition and a list of cultural goods falling within the scope of that definition. The last type of definition is used in the 1970 UNESCO Convention and the 1995 UNIDROIT Convention. (135)
Legal literature will typically follow the definitions used by the 1970 UNESCO Convention and the 1995 UNIDROIT Convention, as they are the most prominent and widely accepted instruments of international law on the subject. Nevertheless, the concept of cultural property in those conventions itself has been the subject of much debate from the very beginning. (136) Article 1 of the 1970 UNESCO Convention defines the term 'cultural property' as:
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.
It then proceeds to list categories to which they might belong: fauna and flora, property relating to history, products of archaeological excavations, of artistic interest, antiquities, manuscripts, books, stamps, archives, furniture, instruments, etc. (Article 1(a)--(k)). Article 2 of the 1995 UNIDROIT Convention defines cultural objects as:
those which, on religious or secular grounds, are of importance for archaeology, history, literature, art or science and belong to one of those categories listed [...],
after which it adopts the categories of the 1970 UNESCO Convention word for word. (137)
This leaves it to be determined whether any specific object will qualify according to these definitions. It is in this respect that we must understand the extensive debates around the phrase 'specifically designated by each State' in the 1970 UNESCO definition. In a similar vein, the wording 'of importance for' in the 1995 UNIDROIT definition has been heavily discussed, with, for example, many art importing nations such as Germany, Switzerland and the UK preferring the more limiting 'of outstanding cultural significance for'. The preference for any definition typically corresponds to the interests of any particular nation, making this only one of many divides between source and market nations. (138)
II. 2.2 Cultural Property Internationalism versus Nationalism
The most significant dichotomy characterising the cultural property world is the deep divide between cultural internationalism and cultural nationalism. This distinction in attitudes towards cultural property was first noted by John Merryman. (139) The essence of the debate revolves around the question of to whom cultural property belongs.
On one side of the spectrum we find the cultural nationalists, who argue that cultural artefacts belong to the descendants of their original makers, in the original source country. (140) These are the advocates of 'cultural patrimony' and 'cultural heritage', who would like to see all cultural property remain in and return to the source country. Their main argument is that these cultural objects are part of a national history and identity, and they should stay in their place of origin in order to keep them in their historical and social context. (141) They consider art objects as part of national cultural heritage because they are tied to national pride, success and history. (142) Today, this view is generally held by many source nations, (143) and in its most extreme form, motivates national export prohibitions. (144)
However, as Siehr asks:
Why should every painting by Francisco Goya be held in Spain? [...] Is it really necessary that every piece of ancient pottery be shown in Greece or Italy? [...] Why should every statue from ancient Egypt be exhibited in Cairo? (145)
This is the view held by the cultural internationalists, who argue that cultural property is the common heritage of all mankind and does not belong to one nation alone. (146) They advocate the circulation of cultural property across nations through collecting and exchange. Some argue for the free trade of cultural property, stating that, apart from economic benefits, it leads to better understanding and cultural exchange between nations, and that it would be better for the conservation of the artefacts if they are held by collectors with the resources for their proper storage and restoration, instead of in impoverished source countries. (147)
It is not surprising that source countries are generally more inclined towards the cultural nationalist view, while the internationalist view is mostly held by market countries. (148) Some of the fiercest supporters of cultural nationalism are archaeologists, while collectors, art buyers and art dealers are typically strong supporters of cultural internationalism. (149) This divide has led to a multitude of problems in the international efforts against the illicit traffic in cultural property, as the next section will show.
Few authors have critically deconstructed this debate. One such author is Barkan. (150) He adds some nuance to the dichotomy, by highlighting that nations are not homogenous wholes, but instead often consist of multiple ethnic groups, regions and minorities which have their own identities and claims to cultural heritage. Using the example of Australia, where the ownership of 'Aboriginal culture' is contested between the State and its indigenous peoples, he demonstrates how the boundaries of a nation do not necessarily coincide with the boundaries of ethnic identity and cultural groups. (151)
Another layer of deconstruction could be offered by contemporary anthropology, wherein it is widely agreed that 'cultures' cannot be considered delineated or static wholes, but instead have fluid and undefinable boundaries, if any. The question of who defines where one cultural or ethnic group begins and another ends, and whether one can ever even speak of 'cultural groups' as a defined entity, is one of the most debated issues in contemporary anthropology, and to date has no definitive answer. (152) As such, can any cultural object really be (re)claimed as the property of any nation, 'culture' or group?
II. 2.3 Restitution of Contested Cultural Property
Restitution is arguably the most contentious issue in the cultural property sphere, and it is heavily politically charged. (153) It revolves around the question of whether artefacts that have been dispersed throughout the world over the years, should return to their original source country. Should the Elgin (or Parthenon) Marbles, for example, be given back to Greece by the United Kingdom? (154) Should all artefacts brought to European countries during the colonial period, be returned to the former colonies? (155) The answer to these questions generally divides market nations supporting the cultural internationalist stance, and source nations arguing from a cultural nationalist stance.
Claims for restitution of cultural property are often based on the notion that control over one's patrimony is a marker of equality between nations, and that it is a medium for the negotiation of identity, especially for healing communities. Restitution claims are also often part of efforts towards self-determination, remembrance and political redress. We must understand this in its context, i.e. the fact that the vast majority of restitution claims centre around pieces which have been plundered under colonial and imperial rule, or were taken from Jewish owners in Nazi Germany. (156)
However, more often than not, former imperial powers are reluctant to relinquish objects in their possession. As a result, disputes over restitution have become seemingly endless exchanges between protagonists on either side. As a typology enunciated by Alan Audi describes, these arguments come in pairs where for every argument based on competence, morality, rights, administrability and history arguing for restitution of cultural property, an equal counter-argument is used to oppose it. (157)
Some claim that a 'restitution revolution' is underway, (158) prompted by French President Emmanuel Macron's declaration that the restitution of African artefacts would be a priority for his country (159) and the groundbreaking report by Sarr and Savoy which followed it. (160) Other European States (161) and museums (162) have since taken initiatives to come to terms with the colonial origins of their collections. This might suggest shifting attitudes towards the issue, although many remain rather sceptical as former colonial powers struggle to find the political will and to produce any significant results. (163)
II.2.4 The Two-Edged Sword of Human Rights
In recent years, there has been increasing attention paid to the interaction between cultural heritage protection and human rights norms. (164)
However, from the complex relationship between source and market nations flows an equally complex relationship between the cultural property trade and human rights. On the one hand, human rights arguments are often used by source nations as justification for cultural nationalistic policies and cultural property retention. The UN Universal Declaration of Human Rights of 1948, the UN Declaration of the Rights of the Indigenous People of 1993 and the Council of Europe Framework Declaration on the Value of Cultural Heritage for Society (2005), are all instruments which are used in this context to frame cultural property retention as a human rights issue, through the right to self-determination, to dignity or the right to cultural property of individuals and communities which are recognised by these instruments. (165)
On the other hand, human rights considerations have also been used by market nations and those in favour of a free trade in cultural property as an argument in restitution debates, citing for example the European Convention on Human Rights of 1950, ensuring the right to peaceful enjoyment of one's possessions. (166) Equally, the right to privacy is cited to resist more transparency in the art market. (167)
As Fiorentini writes: "arguments articulated in terms of human rights can be used as a two-edged weapon". (168)
II. 2.5 Terrorist Financing
Illicit cultural property trafficking has in recent years been connected to terrorist funding. Al Qaeda, for example, is reported to have been involved in smuggling Afghan antiquities. One notorious case which has been reported was that of Mohamed Atta, one of the hijackers of the 9/11 terrorist attacks, who allegedly attempted to sell Afghan antiquities to a German art professor at the University of Gottingen in an attempt to finance an airplane for the 9/11 attacks. (169)
More recently, ISIS' alleged involvement in antiquities trafficking has caught the attention of the international community. ISIS' primary source of income was always understood to be oil and extortion. However, from 2015 onwards, claims surfaced that a growing source of income for Daesh has been illicit trafficking of antiquities from its controlled territories in Iraq and Syria. (170) It was reported that this had escaped the public eye because ISIS itself, through its propaganda channels, sought to suggest that its main interest was in the destruction of these cultural artefacts (rather than their sale), in an agenda of 'cultural cleansing'. However, the understanding grew among many actors that the most valuable items had long been separated and prepared for sale on the black market before the infamous videos of the destruction of famous archaeological sites and museums were made. (171) The estimated income ISIS allegedly generated this way ranged from 4 million to 7 billion USD, although it is difficult to quantify exact figures. (172) These staggering numbers were explained by the unique way that ISIS was said to have institutionalised the trafficking process by issuing taxes, marketing the goods and setting up an entire administrative system of licences issued by a specially created ministry. (173) Through this bureaucratic approach, ISIS would have incentivised locals to undertake the plundering, thus quickly expanding the trade to a massive scale. (174) It was suggested that these artefacts, after having passed through corridor countries such as Lebanon, Jordan, Israel and Turkey, ended up being bought mainly by European and US buyers, creating a perverse system in which Western buyers were indirectly funding the very terrorist group which planned and conducted terrorist attacks on Western soil, and which their own governments are trying to fight. (175)
Lately however, others have started to question whether or not illicit cultural property trafficking by ISIS is in fact a reality and whether it ever happened on this large scale. Janpiet Callens, for instance, challenges the claims of widespread terrorist financing through cultural property trafficking. According to him, the data to support those claims is severely lacking. If it really were such a widespread phenomenon, a myriad of cases would have emerged to provide evidence. (176) Keeping in mind that the alleged looting is done mainly by local amateurs and subsistence looters, as has been outlined in the previous section, it could be equally plausible that the number of objects found is in fact more marginal than initially believed. Or maybe, as Richard Ellis suggested in a lecture delivered at Sotheby's Institute of Art in July 2018, looted objects from Syria and Iraq do end up in Europe on a massive scale, but their provenance is often disguised as originating from other countries, which goes undetected by customs officials. Then again, it is not because an object's provenance lies in Syria or Iraq, that it is necessarily connected to ISIS. This would depend on the exact findplace, the time of its excavation, and a multitude of other factors.
In January 2019, the UN Security Council provided support to these critical voices, with a report which concluded:
Despite systematic consultation with Member States, the Monitoring Team has been unable to establish that ISIL ever generated significant funds from human slavery or sexual violence, although it was certainly massively engaged in such crimes on a basis internal to the so-called "caliphate". Member States also broadly share the analysis that ISIL did not systematically or fully exploit the funding potential of looting and trading in antiquities and cultural goods. (177)
This contrasts sharply with the Security Council's earlier claims such as Resolution 2199 from 2015, which stated that:
ISIL, ANF and other individuals, groups, undertakings and entities associated with Al-Qaida, are generating income from engaging directly or indirectly in the looting and smuggling of cultural heritage items from archaeological sites, museums, libraries, archives, and other sites in Iraq and Syria, which is being used to support their recruitment efforts and strengthen their operational capability to organize and carry out terrorist attacks (178)
This is only one instance of how more critical and nuanced claims seem to be replacing the earlier ones. (179) The Security Council report continues: "Nevertheless, it will not be possible to draw firm conclusions on this until more is known about what was taken, and until enhanced detection and enforcement efforts have yielded more information". (180) Indeed, according to Renata Kaminker, (181) one should keep in mind the patience of the art market. In her experience, the market might react to the current scrutiny on Iraqi and Syrian cultural property by waiting until the storm blows over. She suggests it might take several years before these objects will surface. Since there is a serious lack of data on the number of objects, let alone on exactly which objects have been looted, the market might simply wait for the increased attention on alleged ISIS-looted objects to pass.
It appears that our understanding about whether looted objects from Syria and Iraq have actually ended up on the European market will be enhanced only if we exercise the same patience as that apparently practised by the art market. Whether and how those looted objects are directly connected to terrorist financing, however, is another question. Further research providing solid proof is needed before any definitive conclusions can be drawn regarding the link between terrorist financing and cultural property trafficking. Nevertheless, as will be outlined below, it is precisely the unquestioning acceptance of claims such as these which inspired the creation and content of new legislation on the topic.
There are many reasons why illicit cultural property trafficking is problematic: it puts a strain on international relations; it disrupts the delicate economies of source countries and robs scholars and the public of the chance to study objects in their context; (182) it is connected to armed conflict and other forms of crimes, and therefore is a matter of security; (183) it is a matter of human rights, (184) and it is an issue of religion and national interests. (185)
Evidently, then, this is a global problem deserving and demanding action by the international community. The first two sections of this paper have aimed to outline the contradicting viewpoints and interests of internationalists and nationalists, source and market nations, human rights and market interests, which permeate the entire cultural property world to the extent that they impede the search for a unified international solution to the problem. (186)
As John Merryman writes:
All of these diverse interests are, in principle, legitimate. That they sometimes conflict simply reflects the reality that the cultural property world is complex. I am aware of no basis for supposing that any of the conflicting interests [...] dwell on a higher moral plane than any of the others. The reasonable course is for the interested parties to seek the optimal accommodation of their various interests, and that requires that the parties speak and listen to each other. (187)
As will be discussed in the next section, the main fora for these discussions have been the initiatives to develop international conventions targeting the trafficking of illicit cultural property, where source and market nations have come together out of the shared realisation that the protection of cultural property is necessary. (188) The following section will discuss how the interests and debates outlined in the first two sections permeate the drafting and effectiveness of these instruments, as well as the European situation. This will involve addressing the question as to how international law has framed and countered illicit cultural property trafficking, and how a balance has been struck (if indeed, it has) between the contradictions, debates and differing interests in the cultural property world.
PART III: CULTURAL PROPERTY TRAFFICKING IN INTERNATIONAL AND EUROPEAN LAW
III.1 MILESTONES IN INTERNATIONAL LAW
The contemporary system of international law governing the protection of cultural heritage has arisen almost entirely since the end of the Second World War with the drafting of six international conventions in this area. (189)
Cultural heritage law interacts with other areas of international law such as human rights law (the protection of minorities and indigenous peoples) and international humanitarian law (particularly as regards the destruction of cultural property in the event of armed conflict). Further, cultural heritage protection has been influenced by international criminal law, notably its classification of attacks against cultural property as war crimes and crimes against humanity, and its consolidation of individual criminal responsibility and state responsibility for serious offences against cultural property and the intentional destruction of cultural heritage. (190) Lastly, as will be discussed below, public and private international law have converged to form the cornerstones of cultural property trafficking in international law: the 1970 UNESCO Convention and the 1995 UNIDROIT Convention. They collectively establish the international law system dealing with illicit cultural property trafficking. (191)
III.2 THE 1970 UNESCO AND 1995 UNIDROIT CONVENTIONS: COMPROMISE AND (IN)EFFECTIVENESS
The 1970 UNESCO Convention was a major breakthrough in international law dealing with the illicit trade in cultural property. (192) It is not designed to prohibit the export of cultural property altogether, since it starts by affirming the importance of interchanging cultural property among nations. Rather, its aim is to protect cultural property "against the dangers of theft, clandestine excavation, and illicit export". (193) The Convention aims to give international effect to national export prohibitions, in order to make illegal the import and/ or sale of cultural property illegally removed from States Parties. (194)
The UNIDROIT Convention of 24,h June 1995 on Stolen or Illegally Exported Cultural Objects is usually mentioned in tandem with the 1970 UNESCO Convention. Whereas the UNESCO Convention approaches the issue from a public internatonal law point of view, the UNIDROIT Convention approaches it from a private law viewpoint. Its ultimate goal is to discourage the illicit trade in cultural property by all actors in the market, by creating a new framework which balances the differences between common and civil law nations, source and market nations. (195)
III.2.1 Content of the 1970 UNESCO Convention
The 1970 Convention's provisions, which are meant to be implemented through national legislation, consist of three pillars. (196) The first pillar focuses on measures at the national level, requiring on the one hand that States create an inventory of their cultural property, create lists of those objects to be protected, issue export certificates for this protected cultural property to be exported legally, and prohibit exportation of objects without certificatation. On the other hand, it requires States to prevent their museums and similar institutions from acquiring illegally exported cultural property. Both those goals are accompanied by preventive measures to be taken by States, such as recruiting and training of police officers, cultural heritage professionals and custom officers, regulating excavations and enforcing antiques dealers' transaction registers, the promotion of institutions such as museums and libraries, and educational and public awareness campaigns. (197)
The second pillar deals with the issue of restitution. These provisions are found in Article 7(b)(ii) of the Convention, requiring States to take appropriate steps to recover and return cultural property stolen from a museum or a religious or secular public monument of another State. This is subject to the conditions that the object was imported after the entry into force of the Convention, that just compensation is paid to an innocent purchaser or a person with valid title, and that the object was part of the inventory mentioned in pillar one. (198)
The third pillar is international co-operation. Firstly, Article 9 of the Convention calls for a "concerted international effort", whereby States should support and assist other States Parties whose cultural heritage is in danger. In that case, States may call upon UNESCO and its partners, and on other States Parties, to carry out concrete emergency measures. Secondly, this pillar holds the possibility for States Parties to sign bilateral agreements to extend the scope of the Convention, especially on the issue of restitution. Thus, the Convention allows States to not only protect their own cultural heritage, but also to act outside of their own borders to protect that of other States Parties. (199)
III.2.2 Balancing Source and Market Nations, Cultural Nationalism and Internationalism
Although the 1970 UNESCO Convention has been applauded for changing societal attitudes, (200) setting an example of compromise-finding, influencing the drafting of other conventions, inspiring museums' codes of ethics and influencing public education, (201) criticisms of it largely overshadow these achievements. In the nearly five decades since its drafting, the Convention has received heavy criticism for being a toothless and ineffective piece of legislation. (202) The opposing interests and viewpoints dividing source and market nations as discussed above, permeate every criticism on the Convention's ineffectiveness.
This is the case, for instance, concerning the criticism on the UNESCO Convention's textual weakness. It is criticised for containing too many ambiguous provisions which lack real substance, containing only vague language and empty rhetoric. The drafting has been called 'clumsy', (203) and is said to create confusion and inconsistency in interpretation and thus in implementation. The reason for this lies in the fact that the final text is the result of a difficult compromise between the diametrically opposed interests of source and market nations, and vague language was used in order to gain signatories from both sides. (204)
III.2.3 Meagre Results on the Market Nations' Side
This strategy, however, has not proved very effective, as the Convention has struggled to garner signatories from market nations. It is here that the gulf between market and source nations has been painfully clear: while the Convention has not struggled to get the source nations on board, significant art-importing nations have been very slow to participate. The United States was the first major market nation to sign and implement the Convention in 1983, but European States, comprising some of the most significant market nations, have rather sparingly followed in its footsteps. UNESCO has tried to get market nations on board, but this has proved very difficult. Ratification among market nations has proceeded very slowly, and even after ratifying, most market nations have taken a very long time to create implementing legislation, which has often also been rather weak. The situation of European market nations will be discussed in more detail below.
This hesitation on the part of European market nations to (effectively) join the Convention can be explained by several factors. The first factor is economic in nature: the US' relatively early accession to the UNESCO Convention has been beneficial for European art dealers. Following accession of the US, the international trade in cultural property shifted towards the European market, since objects which were already seen as illicit in the US, could be traded there licitly. (205) Following this shift, the European art world concentrated its lobbying efforts to urge States not to ratify or accede to the 1970 UNESCO Convention, arguing that the effect of such ratification or accession would be that profitable business would be lost to other non-signatory nations: this lobbying was effective and further slowed down the ratification process. (206)
The second factor explaining the reluctance of European States to ratify the 1970 Convention concerns the uneven distribution of burdens and benefits among source and market nations. Article 2 of the Convention requires States to fight illicit cultural property trafficking "with the means at their disposal". It has been argued that the result of this is that wealthy, artimporting nations signing the Convention would be required to invest the most money, resources, infrastructure and influence, while they are the ones who have the least to gain from it, giving them little incentive to join such a Convention. (207)
The third factor which has led, according to many authors, to slow participation of (European) market nations, is their opposition to the so-called 'blank cheque' provision. Article 3 of the Convention leaves signatory States free to decide which objects, within the confines of the designations contained within Article 1, are to be defined as 'cultural property', and to grant export permissions for whichever objects they choose to designate. Other States Parties are bound by the Convention to enforce these nations' export laws which, it is argued, leads to cultural property hoarding by source nations some of which have adopted far-reaching export legislation, which others deem 'excessively retentive'. The opposition to this is twofold: on one hand, it is argued that the 1970 UNESCO Convention supports a strong form of cultural property nationalism under the guise of cultural property internationalism. On the other, that these overly retentive measures by source nations de facto foster the illicit trade, since they make a licit trade near impossible. (208)
Lastly, criticisms of limitation periods and non-retroactivity, its lack of enforcement mechanisms, and issues of restitution should be mentioned (209) as factors which have contributed to political resistance or indifference, and to pressure from the art market against the ratification and implementation of the 1970 UNESCO Convention. (210)
III.2.4 A Solution and a Second Balancing Act: the 1995 UNIDROIT Convention
In the early 1980s, in a bid to address some of the perceived shortcomings of the 1970 Convention, UNESCO turned to UNIDROIT and, in particular, its Draft Uniform Law on the Acquisition in Good Faith of Corporeal Movables (LUAB) as a possible means of resolving some of the problematic aspects of the 1970 UNESCO Convention.
As with the 1970 UNESCO Convention, the 1995 UNIDROIT Convention is the result of an attempt to balance the interests of source and market States. For instance, source nations generally were against the imposition of limitation periods and wanted the Convention to apply retroactively, while market nations generally wanted the opposite. (211) Additionally, civil law and common law States had widely differing approaches to the issue of passing of title to stolen or lost goods: common law countries favouring the principle of nemo dat quod non habet while civil law jurisdictions are generally more generous towards the good faith purchaser. (212) The final outcome is a compromise on both issues. (213)
The most significant compromise was made where the 1995 Convention addresses the issue of restitution. Article 3 of the Convention establishes that it is mandatory for any possessor of stolen property to return it in all cases, thereby favouring the original owner over the good faith purchaser. (214) Moreover, the Convention also caters to the interests of exporting States by creating three subsets of cultural property, one of which has a lengthy limitation period for recovery and restitution claims, and a second having no limitation period at all. The Convention balances this by coupling it with a relatively short limitation period for the third category of cultural property, a non-retroactivity clause, and most importantly, with the possibility of compensation for diligent purchasers, provided in its Article 4. The compromise between the differing interests of dispossessed owners and bona fide purchasers who have exercised due diligence, is considered the Convention's most important achievement, and one of the most important legal measures against illicit cultural property trafficking. (215)
The Convention has mostly been praised for effectively managing to provide clarity on the problematic issues of the 1970 UNESCO Convention, and for being a workable and innovative instrument in the field of illicit cultural property trafficking. (216) However, some of the criticisms of the 1970 UNESCO Convention remain unresolved by the UNIDROIT Convention. The issue of the 1970 UNESCO Convention's 'blank cheque' provision, for instance, is not resolved by UNIDROIT, which continues the cultural nationalist position by favouring the rights of source nations to request restitution, and thereby to declare the export of cultural property illegal. (217) Moreover, owing to the compromise between the interests of civil and common law States, the Convention is constitutionally and politically problematic in many States. (218) As a result, the 1995 UNIDROIT Convention has relatively few signatories. (219)
III.3 Legal Framework in the European Union
III.3.1 Ratification of the 1970 and 1995 Conventions
As was mentioned above, the United States was one of the first major market nations to ratify the 1970 UNESCO Convention. Most European market nations only started to show interest in the 1970 UNESCO Convention nearly 30 years after its adoption. The first reason for the 'wave' in ratifications by market nations in the late 1990s and early 2000s was the increased attention given to accounts of looting and smuggling of archaeological sites, libraries and museums during and after the Iraq invasion of 2003. (220) The second, ironically, was the drafting of the 1995 UNIDROIT Convention. After the latter Convention came into existence, certain European market countries concluded that the more vague requirements of the 1970 UNESCO Convention were preferable to those of the 1995 UNIDROIT Convention. (221)
During this period, France ratified the Convention in 1997, followed by the United Kingdom's accession in 2002, and ratifications by Sweden and Denmark shortly after that. Germany ratified the Convention in 2007. Austria and Luxembourg were the most recent European nations to ratify the Convention in 2015 (222) until Latvia recently ratified the Convention, setting the total number of EU Member States which have ratified or acceded to the 1970 UNESCO Convention to 26. (223) Malta and Ireland are the only EU Member States not to have signed or ratified the Convention. (224)
To date, fifteen EU Member States have ratified or acceded to the 1995 UNIDROIT Convention Lithuania, Finland, Hungary and Romania were among the first European nations where the Convention entered into force, (225) followed by Italy in 2000 and Croatia (226) in 2001. Spain and Portugal followed in 2002 and 2003 respectively, and in the same period, Slovenia and Slovakia. (227) Others such as Greece, Denmark and Sweden followed later, between 2008 and 2011. (228) Interestingly, two major European market nations, the UK and Germany, have neither signed nor ratified the Convention. (229) Two other Member States, France and the Netherlands, are signatories but have not ratified it. (230) The latest EU Member State to join the 1995 UNIDROIT Convention was Latvia in February 2019. (231)
III. 3.2 The Problem of Implementation
As Delepierre and Schneider write:
[T]he drafting and adoption of an agreement are not goals in themselves: successful protection of cultural heritage lies in the implementation of those texts at the national level. (232)
Indeed, since the 1970 UNESCO Convention is non-self-executing, it requires national implementing legislation. (233) The 1995 UNIDROIT Convention, on the other hand, is applicable directly, so it does not require national implementing legislation, nor does it allow for reservations. (234)
Analyses seem to mostly agree on the continuing lack of adequate implementation of the 1970 UNESCO Convention in market nations. The United States for instance, despite its relatively early accession to the Convention, has been criticised for its many reservations and rather narrow interpretation of the Convention. (235) In the European Union, Member States have used different means to implement the Convention. Some have failed to enact implementing legislation, while others have made amendements to domestic law to incorporate some of the principles and requirements of the Convention, or to be more consistent with it. Lastly, some States have enacted a specific law implementing the Convention. (236)
All EU Member States currently have legislation in place regulating at least some aspects of the cultural property trade. However, there are disparities between the various systems in the EU concerning illicit cultural property trafficking. Differences in the definition of cultural property, disparities in arbitration concerning the notion of good faith, disparities in criminal offences, and disparities in technical tools such as databases and inventories, are among the aspects resulting in a patchwork of varying degrees and systems. (237) For instance, while import licences are required in some States, they are voluntary in others. (238) Moreover, some Member States have concluded separate bilateral treaties with third countries on the subject. (239)
This results in an uneven treatment of cultural objects entering the European Union. Moreover, it brings uncertainty about the applicable legislation in any given situation for all actors involved, as well as limited effectiveness owing to individual and differing efforts by Member States. Lastly, it results in 'port-shopping', whereby trafficking routes move to unregulated or more vulnerable parts of the EU. (240) This situation is aggravated by a lack of co-operation on operational aspects, such as inter-institutional co-operation, information sharing and the dispersal of knowledge and skills. (241)
III.3.3 Legislation at the EU Level
At the EU level, there is some legislation in place governing the trade in cultural property: Regulation (EC) No 116/2009 governs common rules on prior authorisation for the export of EU cultural goods. Directive 2014/60/EU creates common rules on the return of cultural property which has been unlawfully removed from an EU Member State. (242)
However, there are at present no common rules covering the import of cultural goods into the European Union from third States, with two specific exceptions. Council Regulations (EC) No 1210/2003 and (EU) No 36/2012 (amended by Regulation No 1332/2013) prohibit the importation of cultural goods originating from Iraq and Syria respectively. It is important to note that in case of a false provenance declaration by an importer, the burden of proof lies with EU customs. This means that EU customs has to prove that the provenance of any item entering the European Union lies in Syria or Iraq, and that they have been illicitly looted or excavated. Apart from these two specific situations, imported cultural property is currently treated like any other good. (243)
Nevertheless, the European Union is competent in this matter. Articles 3 and 207 of the Treaty on the Functioning of the EU (TFEU) grant the EU exclusive competence for commercial policy and customs legislation, including customs controls at import. (244)
The European Commission has taken steps to address this situation. In its 2016 Joint Communication, 'Towards an EU Strategy for International Cultural Relations', the European Commission announced its intention to regulate the import of cultural goods into the EU. (245) It tabled its 'Proposal for a regulation on the import of cultural goods' on 13th July 2017, which was adopted by the European Parliament on 12th March 2019. (246) The initiative aims to complement the two existing regulations on the import of cultural goods from Syria and Iraq and the existing EU legislation on the export of cultural goods, (247) and to harmonise the patchwork of currently existing national legislation on the import of cultural property in the EU. (248)
The international community recognises the importance of a concerted effort to stop illicit cultural property trafficking. The main instruments of international law in that respect were drafted in 1970 and 1995. However, the differing interests of source and market nations have influenced the effectiveness of these instruments of international law for the worse, from their drafting to their ratification and implementation. While the 1995 UNIDROIT Convention mostly suffers from low ratification rates, the 1970 UNESCO Convention has arguably suffered from ineffective implementation among market nations.
This situation has manifested itself throughout the European Union, where some of the most significant market nations for cultural property are found. The result of differing ratification rates of both Conventions, coupled with divergent implementing legislation of the 1970 UNESCO Convention and the absence, until recently, of comprehensive EU-level legislation, made for a patchwork of different kinds and different levels of protection for cultural property. This has been problematic for a number of different reasons, the most important ones being 'port-shopping' and legal uncertainty.
The European Commission has taken steps to address this situation by introducing a Regulation on the import of cultural goods into the European Union. The Regulation promises to be a welcome development in the arduous process of fighting illicit trade in cultural property of the past decades. However, like any other international agreement, this Regulation will also be the result of compromise. (249) Based on the elements presented above, the next section aims to analyse what the balance between the different interests and viewpoints dominating the continued debates in the cultural property world might look like in this context, nearly 40 years after the drafting of the 1970 UNESCO Convention.
Part IV: Regulation on the Import of Cultural Goods in the European Union: Analysis
IV. 1 Legislative Process
The European Commission adopted the proposal on 13th July 2017, after which it submitted it to the European Parliament and the Council. (250) The Council of Presidents of the European Parliament appointed the Committee on International Trade (INTA) and the Committee on Internal Market and Consumer Protection (IMCO) to work together as responsible committees under the joint committee procedure of Rule 55, (251) with Alessia Maria Mosca (S&D, Italy) and Daniel Dalton (ECR, UK) as co-rapporteurs. The Committee on Culture and Education (CULT) was associated under the associated committee procedure of Rule 54 (252) as committee for opinion, with Santiago Fisas Ayxela (EPP, Spain) as rapporteur. Additionally, the Committee on Civil Liberties, Justice and Home Affairs (LIBE), where Kostas Chrysogonos (GUE/NGL, Greece) was appointed rapporteur, also submitted its opinion. (253)
In September 2018, INTA and IMCO issued a joint report recommending amendments to the proposal, which were subsequently voted on and approved by the European Parliament plenary in October. In November 2018, the Council adopted its postion on the draft regulation, after which interinstitutional negotiations led to a provisional interinstitutional agreement being reached on 11th December. This agreement was then approved by the EU ambassadors meeting in COREPER. After this, in January 2019, it went back to the European Parliament where the INTA and IMCO committees also jointly approved the provisional interinstitutional agreement. Finally, on 12th March 2019, the European Parliament voted on the new consolidated text, after which the Council formally approved it on 9th April 2019. (254)
Following its approval by the Council, the new Regulation is directly applicable in all Member States, without needing to be transposed into national law. (255-256) It is expected to be fully operational by 2025, providing the Commission sets out the rules for the electronic database (257) within two years of the Regulation entering into force, and that the system is operational four years after that. (258)
IV.2 CONTENT OF THE REGULATION
The Regulation consists of four major points. The first is a common definition for cultural goods in the context of their import into the European Union. The definition is based on the one found in the 1995 UNIDROIT Convention. Additionally, the Regulation applies only to goods of a minimum of 250 years old for certain categories, and 200 years old for other categories. The reason for this is that these would be the goods most at risk, and excessive administrative burdens could be avoided. (259) A minimum financial threshold was added to this age threshold in the final text of the Regulation, in order to exclude objects of lower value. (260)
Secondly, the Regulation introduces certification and documentation requirements for the import of cultural goods into the EU. The Regulation differentiates between categories of cultural goods at high risk from pillage and destruction of at least 250 years old, i.e. archaeological finds, ancient manuscripts and books, parts of monuments and archaeological sites, and between all other categories of cultural goods at a minimum of 200 years old and worth at least 18,000 euro. For the first category, the Regulation provides for a new licensing system whereby importers need to provide proof either (i) that the items in question were lawfully exported from the country in which they were created or discovered; or (ii) in a situation where either that source country cannot be reliably determined, or the items were taken out of the source country before 24th April 1972 (when the 1970 UNESCO Convention came into force), that they were lawfully exported from the last country where they were located for a period of more than five years. The importer will receive a decision within 90 days of submission of a completed application. (261) For goods in the latter category, the holder of the cultural goods must provide an 'importer statement' comprising a declaration that the goods have been legally exported from their source country and a 'standardised document' providing sufficient information to allow for their identification by the relevant authorities. As with the licence application, evidence of lawful export from the last country where they were located for at least five years is permitted for items where the source country cannot be identified, or they were removed prior to April 1972. (262)
Thirdly, the Regulation provides for close co-operation between the competent authorities of Member States, by storing and exchanging information in a centralised electronic database. (263) Training and capacity building activities for third countries in co-operation with Member States may be organised by the Commission to the extent the Commission considers may be required. (264)
Lastly, the Regulation aims to deter illicit cultural property trafficking by, on the one hand, urging Member States to organise awareness and diligence campaigns targeted at importers and potential buyers of cultural goods, (265) and, on the other, by requiring Member States to introduce penalties for infringements of the customs control measures at import and to take all measures necessary to ensure their implementation. (266)
IV. 3.1 Cultural Nationalism
As Daniel Dalton and Alessia Maria Mosca (267) write in their draft report, the Regulation aims to build on "the previous work of leading international fora", notably the 1970 UNESCO Convention and the 1995 UNIDROIT Convention. (268) However, whereas it builds on the texts and ideas of those two Conventions, it risks perpetuating some of the issues which have led those Conventions to be so heavily criticised.
As has been outlined in the previous section, the Regulation requires any person importing cultural goods into the European Union to provide proof to the customs authorities of licit export of said object from the source country, in order to obtain an import licence from the EU country of entry, with the (quite significant) derogation that in a situation where either that source country cannot be reliably determined, or the items were taken out of the source country before 24th April 1972 (when the 1970 UNESCO Convention came into force), evidence can be presented that they were lawfully exported from the last country where they were located for a period of more than five years. Based on the discussions in the two previous sections, such a system could perpetuate at least two controversial aspects of the 1970 UNESCO Convention.
Firstly, the criticism of the 'blank cheque provision' in the 1970 UNESCO Convention. Article 3 of the Convention gave source nations the power to designate as cultural property whichever objects they chose within a very broad definition, and to prohibit their export, by ensuring the enforcement of those prohibitions by importing States Parties. This system has been heavily criticised for enabling 'hoarding' of cultural property and the imposition of sweeping national export prohibitions by source countries. Moreover, it has been argued that this retention of cultural property actually fosters the illicit trade in cultural property, by forcing those goods underground as they make any licit trade in them impossible. (269)
Whilst the Regulation does not rely on a definition of cultural property dependent on the designation by particular States (as under UNESCO 1970), (270) it still makes licit import into the European Union dependent, in the first instance, on documentation proving licit export from the source country (or, if the derogation described above applies, (271) from a 'transit' country where the item had been located for at least five years). Thus, the Regulation bases import licences on the enforcement of third countries' national export laws (either those of the source country of a 'transit' country as just described). As such, the Regulation is vulnerable, to a degree, to some of the criticism from the art market as has been tabled against the 1970 UNESCO and 1995 UNIDROIT Conventions.
Secondly, the derogation in cases where the source country cannot be reliably identified, or where the goods were removed from that source country before 1972 (where only the last country where the goods were located for more than five years must be checked by the importer), is somewhat lacking in clarity and raises considerable questions: "Who decides when a source country cannot be 'reliably determined'? And what if a pre-1972 export was problematic--is an importer encouraged to turn a blind eye because he need only evidence more recent exports?". (272) As will be discussed below, this is not the only provision which is challenging in terms of clarity and applicability, which is highly problematic given that the vagueness of provisions was a major pitfall of both the 1970 UNESCO Convention and the 1995 UNIDROIT Convention.
IV.3.2 Co-operation with Source Countries
As the first section of this paper noted, source countries from where cultural goods entering the EU originate, are more often than not countries where conflicts and war heavily disrupt a functioning government apparatus. (273) Moreover, the high levels of corruption from which some source countries notoriously suffer, make any documentation attesting to licit export from those countries questionable. (274) Lastly, as has been discussed, source countries often lack the resources to adequately bear the financial and administrative burden of organising export documentation for cultural goods. (275)
It is for this reason that the 1970 UNESCO Convention contains provisions requiring States to fight illicit cultural property trafficking "with the means at their disposal", and to support and assist States which might need it, in a spirit of international co-operation. (276) However, this was precisely one of the reasons why market nations were slow to support the Convention, as they claimed this was an uneven distribution of the burdens and benefits, to their disadvantage. (277)
Initially, the Regulation appeared to be based on the presumption that all exporting countries have a well-functioning system of exportation documentation for cultural property. The system of import licences based on proof of licit export from the source country (or a transit country if the derogation applies), did not mention any co-operation with customs authorities from those exporting countries. (278) However, how effective would a system be which relies on source countries to provide documentation proving licit export to importers of cultural property, if those countries are not given any assistance to do this effectively?
In the final text of the Regulation, these concerns were addressed in two ways. Firstly, Article 12 was added, which states that the Commission may, in matters covered by its activities and to the extent required for the fulfilment of its tasks under this Regulation, organise training and capacity building activities for third countries in co-operation with Member States. Secondly, the use of ICOM Red Lists was added to the Regulation in order to strengthen the identification of countries and categories of objects most at risk. (279)
IV. 3.3 The War on Terror
Much like the 1970 UNESCO and the 1995 UNIDROIT Conventions, the EU Regulation wasn't created in a historical vacuum. In order to understand them properly, explains Renata Kaminker, (280) one should consider the political climate in which the respective instruments of international law came into being. Their development, content and support have always been inspired by certain events and incidents which moved the international community to temporarily give attention to cultural property trafficking. For instance, after reports surfaced of the looting of the Baghdad Museum in 2003, support for existing international conventions targeting cultural property soared and we also see the creation of new instruments and conventions after such events.
Considering this, it is not insignificant that the new EU Regulation is mainly framed as a measure against terrorist financing, appealing to the security of European nations--an argument that is hard to ignore in the current political climate. The 'war on terror' rhetoric has been present for a longer time, mostly in the US after 9/11. However, since the recent attacks in Europe, it has gained a second wind across Europe. (281) One of the main priorities in fighting terrorism for the European Union and its Member States has been to tackle terrorist financing. Since this has become such an urgent matter, the link between terrorist financing and illicit cultural property trafficking has also gained attention. (282)
European market nations appear to have had a wake-up call concerning the fight against illicit traffic in cultural property, as with their very own 'war on terror', they have a new motivation to do so. Numerous calls to action have surfaced which link the illicit trade in cultural property to the fight against terrorism. In the years since the first terrorist attacks in France, statements by the G7, G20 and the Security Council have called upon nations to tackle illicit cultural property trafficking. The European Union even announced 2018 as the European Year of Cultural Heritage to attract more attention to the protection of cultural property. (283) This has built the political climate which demands action in the fight against the illicit trade in cultural property. The European Commission itself stated that its proposal was a response to those calls for action from the European Parliament, the G20 and G7, the WCO, the United Nations Security Council, and to its own European agenda on security and its action plan to strengthen the fight against the financing of terrorism. In its announcement of the proposal, the European Commission almost unequivocally framed it as a necessary development for international security and the fight against terrorism. Although the European Union has many reasons to halt the illicit traffic in cultural property, (284) the main reason put forward is to end terrorist financing. (285)
References to 'the enjoyment of cultural heritage for all mankind', which dominated European market nations' motivations for their efforts (or lack thereof) in recent decades,286 now appear to be replaced by a much less contested 'security' or 'war on terror' rhetoric. Therefore, this paper argues that the internationalist stances of market nations have largely developed into rhetoric centered around security and fighting terrorism. Moreover, since the adoption of the Regulation was a reaction to the increased concern with terrorist financing, these circumstances seem to have heavily influenced its drafting.
However, as was outlined above, this link between terrorist financing and cultural property trafficking is no longer as widely accepted as it was a few years ago. Moreover, the international community can be forgetful, and just as certain events can cause a revival in attention to cultural property trafficking, other events may divert that attention towards different issues of the day. Indeed, now that the Islamic State is reported to have lost all of its controlled territories in Iraq and Syria, (287) foreign fighters are either tried, killed or arrested upon their return,288 terrorist attacks by IS on European soil are becoming fewer and farther between, and the terrorist threat does not dominate the news as it did in recent years, (289) what will happen to the momentum for the new measures against illicit cultural property trafficking?
Security is likely to remain a priority throughout the European Union. For instance, in its budget for the coming years, the European Commission reaffirmed that defence and security will stay at the top of the priority list. (290) But the question remains whether the fight against illicit cultural property trafficking will remain a priority, especially since its link to security is increasingly contested.
IV.3.4 Human Rights
There is increasing concern that respect for human rights is in decline in recent years, as a result of the rise in populist movements and counter-terrorism measures, among other things. Eric Posner, for instance, argues that although the language of human rights flourishes more than ever, the European Union and the United States have taken a step back from their traditional role as the main advocates of human rights on the international stage, and human rights violations remain widespread and are largely committed with impunity. (291) Moreover, measures against terrorism are generally not associated with the improvement of human rights. On the contrary, they are often considered as potentially threatening to the protection of human rights. EU Member States' counter-terrorism measures are the cause of great worry for the human rights community. For instance, the right to privacy is one of the primary concerns from a human rights point of view when it comes to counter-terrorism measures. (292)
However, national security and human rights protection are not necessarily mutually exclusive. They can be complementary to each other. (293) This Regulation holds the potential of being one of the rare counter-terrorism measures which might improve the protection of human rights, specifically the cultural rights of source countries and affected communities. (294)
On the other hand, this would be achieved through measures which would require much greater transparency in the art market, which raises questions concerning the protection of the right to privacy for art market professionals. (295) As has been outlined above, even though the art market is considered by some to be moving slowly towards greater transparency, (296) this is often countered by the right to privacy being invoked. (297) In order to address this, the preamble of the Regulation states that the Regulation should respect the right to respect for private and family life, and data protection provisions were included in Article 10 of the Regulation.
In short, whether the Regulation strengthens or harms human rights protections, depends on a balancing exercise between the right to privacy for the actors in the art market, and the cultural rights of source countries and their diasporic communities.
IV.3.5 Impact on the Art Market
Certain provisions of the Regulation were negatively received by the art market because they would have a far-reaching financial and administrative impact on the art trade. (298) As Vincent Geerling stated in his talk at BRAFA: "The proposed Regulation is very complicated, impractical, unclear and, above all, unnecessary". (299) Lobbyists called for a financial threshold in addition to, for instance, a higher age threshold. (300) In its opinion submitted in June 2018, the CULT Committee equally called for a more even balance between measures protecting cultural heritage and protections for the art market, so as to protect the licit trade from being disproportionately affected by the new Regulation. (301) The final text of the Regulation contains concessions in this respect, notably by introducing a financial threshold alongside the minimum age threshold, which excludes objects with lower values from the new regulations. (302)
This effort to accommodate the art market should, however, raise serious questions as to its potential impact on the overall effectiveness of the Regulation. The financial value of an art object is not objectively measurable, but rather subjective and variable depending on taste, the emotional or cultural value attached to it, and supply and demand. (303) The price of art is first and foremost an agreement, not an inherent or fixed property of an object. (304) How could objective and uniform parameters possibly be established on the basis of which it could be determined whether an object at customs falls above or below a certain financial threshold? Secondly, who would be suited to decide what any object is worth at import? Would this have to be declared by the importers themselves, who could easily ascribe a lower value to the object in order to let it escape from scrutiny? Or will it be left to customs officials to determine the financial value of imported art objects, without any possible objective parameters to do so, and knowing that art valuation is a specialty which takes years of training? (305) As such, the introduction of this financial threshold appears to be a far-reaching concession to art market interests which creates much uncertainty.
Despite this significant amendment in favour of the art market, concerns remain that the legislation would still present an "obstacle to trade", a "risk for the security of transactions" and an "undue limitation to the free diffusion of culture". (306)
PART V: CONCLUSION
Illicit cultural property trafficking is part of a global and dynamic multi-billion-dollar trade with a controversial balance between licit and illicit aspects, black, white and grey markets, source and market nations. Furthermore, the trade is connected to transnational organised crime and its networks, as well as to conflict, political instability and terrorism. Ideological differences and economic interests have deeply entrenched the actors of the cultural property world around debates about the definition of cultural property, cultural property nationalism versus internationalism, regulation, human rights and restitution. Several international Conventions were adopted with the aim of addressing this situation, notably the 1970 UNESCO Convention and the 1995 UNIDROIT Convention. Both Conventions are embedded in the deep contradictions between market and source nations, and cultural nationalists and internationalists. They are the result of compromises which have prevented these instruments from providing the successful concerted international solution they were intended to offer.
Meanwhile, illicitly trafficked property has continued to move around the world. The entrenched positions of source and market nations, nationalists and internationalists have resulted in rather weak international efforts to end illicit cultural property trafficking, allowing smugglers, looters, buyers and sellers of cultural property, to increase their illicit activities on a vast scale.
As a response, the European Parliament adopted a Regulation on the Import of Cultural Goods into the EU in March 2019. Its aim is to harmonise the patchwork of existing legislation in its Member States, in order to stop the flow of illicitly trafficked cultural goods into the EU, and ultimately, to drain terrorist financing.
This article offers an analysis of the new Regulation, which, like the international Conventions which preceded it, constitutes a balancing act between source and market nations, cultural nationalists and internationalists, ethical considerations and economic interests, human rights and security. The tension within these long-standing debates has characterised the efforts against illicit cultural property trafficking over recent decades, notably the drafting, ratification and implementation of the 1970 UNESCO and 1995 UNIDROIT Conventions. On the one hand, this new Regulation could be a signifier of change in the dynamic between source and European market nations, brought about by increased concern regarding terrorism. On the other hand, it seems to replicate some of the pitfalls which have impeded the efforts against illicit cultural property trafficking to date. These include, in particular, the implications of cultural nationalist measures, the vagueness of provisions, human rights considerations and the reliance on nations of export. On top of these challenges lies the perennial difficulty of avoiding disproportionate restrictions on the licit art trade, as required by the art market, without undermining the instrument's overall effectiveness.
(1) <http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P8-TA-2019-0154&1a nguage=EN&ring=A8-2018-0308>. The Regulation was originally proposed by the European Commission in July 2017, with the objective of reducing trafficking in cultural goods, combating terrorism and protecting cultural heritage: Anna Zygierewicz and Marta Mendez Juez, 'Implementation Appraisal: Illicit Trade in Cultural Goods', European Parliament, European Parliamentary Research Service. It was adopted by the European Parliament on 12 March 2019 and approved by the EU Council on 9 April 2019. Also, see Emily Gould, 'The EU's Parting Gift to the UK Art Market?', IAL Blog, 1 April 2019: <https://ial.uk.com/the-eus-parting-gift-to-theuk-art-market/>.
(2) European Commission, 'The European Year of Cultural Heritage 2018 Takes Off, 7 Dec. 2017, retrieved from European Commission Press Release Database: <http://europa.eu/rapid/pressreleaseJP-17-5067_en.htm>.
(3) Jennifer Tribble, 'Antiquities Trafficking and Terrorism: Where Cultural Wealth, Political Violence, and Criminal Networks Intersect', (2014) MonTREP, 1-27.
(4) Donna Yates, 'Illicit Cultural Property from Latin America: Looting, Trafficking, and Sale', in France Desmarais, Countering Illicit Traffic in Cultural Goods: The Global Challenge of Protecting the World's Heritage (2015, ICOM).
(5) Simon Mackenzie and Tess Davis, 'Temple Looting in Cambodia: Anatomy of a Statue Trafficking Network', (2014) 54(5) British Journal of Criminology, 722-740.
(6) Patty Gerstenblith, 'Controlling the International Market in Antiquities: Reducing the Harm, Preserving the Past', 8(1) (2007) Chicago Journal of International Law, 169-196.
(7) Lucas Lixinski and Lara Schreiber, 'The Limits of Framing in International Law: The Shortcomings of International Heritage Protection in the ISIS Conflicts', RUMLAE Research Paper No. 17-04, 1-14. Adelaide Law School.
(8) Blythe Bowman, 'Transnational Crimes Against Culture: Looting at Archaeological Sites and the "Grey" Market in Antiquities', (2008) 24(3) Journal of Contemporary Criminal Justice, 225-242.
(9) Hereinafter: 1970 UNESCO Convention.
(10) Hereinafter: 1995 UNIDROIT Convention.
(11) See further below.
(12) Lixinski and Schreiber, above note 7.
(13) Jane Warring, 'Underground Debates: The Fundamental Differences of Opinion that Thwart UNESCO's Progress in Fighting The Illicit Trade in Cultural Property', (2005) 19 Emory International Law Review, 228-304.
(14) Ibid. Also see Erik Nemeth, 'Conflict Art: Scholars Develop the Tactical Value of Cultural Patrimony', (2010) 23(2) Cambridge Review of International Affairs, 299-323.
(15) Neil Brodie, introduction' in Neil Brodie and Kathryn Tubb, Illicit Antiquities: The Theft of Culture and the Extinction of Archaeology, (2002, Routledge), pp. 1-22; Neil Brodie, Jennifer Doole and Colin Renfrew, Trade in Illicit Antiquities: The Destruction of the World's Cultural Heritage. (2001, Oxbow Books); Neil Brodie, Jennifer Doole and Peter Watson, Stealing History: The Illicit Trade in Cultural Material, (2000, McDonald Institute for Archaeological Research).
(16) Donna Yates, 'The Global Traffic in Looted Cultural Objects', in Nicole Rafter and Eamonn Carribine, The Oxford Encyclopedia of Crime, Media, and Popular Culture. (2016, Oxford University Press).
(17) Bowman, above note 8.
(18) For example, Mackenzie and Davis, above note 5.
(19) Nemeth, above note 14.
(20) John Merryman, Two Ways of Thinking About Cultural Property. (1986) 80(4) American Journal of International Law, 831-853.
(21) Francesco Francioni, 'Public and Private in the International Protection of Global Cultural Goods', (2012) 23(3) European Journal of International Law, 719-730.
(22) Karl Meyer, The Plundered Past: The Story of the Illegal International Traffic in Works of Art. (1973, Atheneum).
(23) Alper Tasdelen, The Return of Cultural Artefacts: Hard and Soft Law Approaches, (2016, Springer International Publishing) p. 2.
(24) Kurt Siehr, 'Globalization and National Culture: Recent Trends Toward a Liberal Exchange of Cultural Objects', (2005) 38 Vanderbilt Journal of Transnational Law, 1069-1070.
(25) A. Zygierewicz and Juez, M. Mendez (July 2017). Implementation Appraisal: Illicit Trade in Cultural Goods. Briefing, European Parliament, European Parliamentary Research Service, p. 1.
(26) 'On illicit traffic', ICOMInternational Observatory on Illicit Traffic in Cultural Goods, <https:// www.obs-traffic.museum/illicit-traf!ic-0>.
(27) John Conklin, Art Crime. (1994, Praeger) cited in Antonius Tijhuis, 'Transnational Crime and the Interface Between Legal and Illegal Actors: The Case of the Illicit Art and Antiquities Trade', (2006, Wolf Legal Publishers), p. 129.
(28) Tribble, above note 3.
(29) Tijhuis, above note 27.
(30) Tribble, above note 3, pp. 5-6.
(31) Raymond Fisman and Shang-Jin Wei, 'The Smuggling of Art, and the Art of Smuggling: Uncovering the Illicit Trade in Cultural Property and Antiques', (2009) 1(3) American Economic Journal: Applied Economics, 82-96.
(32) Neil Brodie, Jennifer Doole and Peter Watson, Stealing History: The Illicit Trade in Cultural Material, (2002, McDonald Institute for Archaeological Research).
(33) Ibid., p. 12.
(34) Merryman, above note 20.
(35) Tijhuis, above note 27, pp. 133-134
(36) Claudia Fox, 'The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects: An Answer to the World Problem of Illicit Trade in Cultural Property', (1993) 9(1) American University International Law Review, 252-254.
(37) Lisa Borodkin, 'The Economics of Antiquities Looting and a Proposed Legal Alternative', (1995) 2 Columbia Law Review, 385.
(38) Tijhuis, above note 27, pp. 133-134.
(39) Warring, above note 13, pp. 236-237; and Fox, above note 36.
(40) Warring, above note 13.
(41) Borodkin, above note 37, p. 385.
(42) Fox, above note 36, pp. 252-254.
(43) J. Bersin, 'The Protection of Cultural Property and the Promotion of International Trade in Art', (1992) 13 N.Y.L. Sch. J. Int'l & Comp. L., 126-127; Tasdelen, above note 23.
(44) Rachel Pownall, TEFAF Art Market Report 2017, (2017, Helvoirt: The European Fine Art Foundation), p. 47.
(45) C. McAndrew, The Art Market 2019. (2019), pp. 37-39.
(46) Fox, above note 36, pp. 252-254.
(47) Tijhuis, above note 27, p. 134.
(48) Yates, above note 16.
(49) Bowman, above note 8, p. 226.
(51) Ibid., also, Tribble, above note 3, pp. 3-4.
(52) Tijhuis, above note 27, pp.139-140. One known example dates from 1999, when the Spanish police uncovered an international smuggling ring which traded pre-Columbian antiquities for cocaine: Brodie, Doole and Watson, above note 15.
(53) Tijhuis, above note 27, pp. 139-140; see also, Bowman, above note 8, pp. 230-232.
(54) Bowman, above note 8.
(55) Tijhuis, above note 27, pp. 139-140; see also, Bowman, above note 8.
(56) Philip Gounev and Tihomir Bezlov, Examining the Links Between Organized Crime and Corruption, (2010, European Commission, Directorate General Justice, Freedom, and Security).
(57) Fisman and Wei, above note 31, p. 83.
(58) Borodkin, above note 37.
(59) Tihomir Bezlov and Philip Gounev, 'Organized Crime, Corruption and Public Bodies', in Philip Gounev and Vincenzo Ruggiero, Corruption and Organized Crime in Europe: Illegal Partnerships, (2012, Routledge).
(60) Borodkin, above note 37; also, see Bowman, above note 8.
(61) Clemency Coggins, illicit Traffic of Pre-Columbian Antiquities', (1969) 29(1) Art Journal, 94-114.
(62) See Warring, above note 13, pp. 235-236; see also Nemeth, above note 14, p. 312.
(63) Mark Vlasic and Helga Turku, "Blood Antiquities': Protecting Cultural Heritage Beyond Criminalization', (2016) 14 Journal of International Criminal Justice, 1182.
(64) Sigrid Van der Auwera, 'International Law and the Protection of Cultural Property in the Event of Armed Conflict: Actual Problems and Challenges', (2013) 43(4) Journal of Arts Management, Law, and Society, 175-176.
(65) Al Mahdi was succesfully prosecuted for war crimes against cultural property, for his role in the destruction and vandalisation of mosques, mausoleums and tens of thousands of ancient manuscripts by Ansar Dine, an AI-Qaeda linked group in Timbuktu, Mali in June and July 2012. The case is highly significant in that it exclusively deals with the war crime of intentionally directing attacks against cultural property. This case was the first one to be brought before the ICC 'concerning the destruction of buildings dedicated to religion and historical monuments' during an armed conflict of a non-international character, and is therefore regarded as an important precedent for similar acts which have been committed in inter alia Iraq and Syria (Vlasic and Turku, above note 63); (International Criminal Court, 2016); see Alexander Herman, 'Timbuktu, International Criminal Law and Cultural Heritage Protection' (2018) XXIII Art Antiquity and Law 61.
(66) During the Kosovo-war, Serbs specifically targeted Albanian Muslim heritage, and the Albanian Kosovars attacked Serbian Orthodox heritage as part of the ongoing identity-bound conflict: Van der Auwera, above note 64.
(67) Eric Posner, 'The International Protection of Cultural Property: Some Skeptical Observations', (2006) 141 Public Law and Legal Theory Working Papers, 1-20.
(68) Van der Auwera, above note 64, pp. 175-176.
(69) Tasdelen, above note 23.
(70) Tijhuis, above note 27; see also Warring above note 13.
(71) Howard Spiegler, 'Recovering Nazi-Looted Art: Report from the Front Lines', (2001) 16(2) Connecticut Journal of International Law 297-312.
(72) Siehr, above note 24, pp. 1069-1070.
(73) Tasdelen, above note 23.
(74) Neil Brodie, Jennifer Doole and Colin Renfrew, Trade In Illicit Antiquities: The Destruction Of The World's Cultural Heritage. (2001, Oxbow Books); see also, Tijhuis, above note 27, pp. 135136.
(75) See Bowman, above note 8.
(76) Ibid., and Hannah Willet, ill-gotten Gains: A Response to the Islamic State's Profits from the Illicit Antiquities Market', (2016) 58 Arizona Law Review, 831-865.
(77) Willet, above note 76, pp. 845-846.
(78) See Bowman, above note 8.
(79) Neil Brodie, 'Introduction' in Neil Brodie and Kathryn Tubb, Illicit Antiquities: The Theft of Culture and the Extinction of Archaeology, (2002, Routledge).
(80) Christine Alder and Ken Polk, 'Stopping This Awful Business: The Illicit Traffic in Antiquities Examined as a Criminal Market' (2002) VII Art Antiquity and Law, 35-53.
(81) Bowman, above note 8, p. 233.
(82) Tom Flynn, The A toZof the International Art Market, (2017, Bloomsbury), p. 125.
(83) Bersin, above note 43; see also Borodkin, above note 37.
(84) Bowman, above note 8, p. 233.
(85) Tribble, above note 3.
(86) Tijhuis , above note 27, p. 137.
(87) Tribble, above note 3, pp. 4-5.
(88) Warring, above note 13, p. 234; see also Borodkin, above note 37.
(89) Borodkin, above note 37, pp. 277-278; see also Tribble, above note 3, pp. 4-5.
(90) Tribble, above note 3, pp. 4-5.
(91) Peter Watson, Sotheby's: The Inside Story, (1997, Random House); 'Questions and Answers on the Illegal Import of Cultural Goods Used to Finance Terrorism', European Commission Press Release Database, (13 July 2017) <http://europa.eu/rapid/press-release_MEMO-17-1954_en.htm>.
(92) Joanne Farchakh, 'Temoignage d'une Archeologie Heroi'que', (2004) 411 Archeologia, pp. 14-27.
(93) Bersin, above note 43.
(94) Yates, above note 16, p. 3.
(95) Merryman, above note 20, pp. 11-12.
(96) Bowman, above note 8, pp. 228-229.
(97) Simon Mackenzie, 'Protection Against Trafficking in Cultural Property', UNODC, <https://www.unodc.org/documents/organized-crime/V0987314.pdf>. 'Saving our Vanishing Heritage: Safeguarding Endangered Cultural Heritage Sites in the Developing World', Global Heritage Fund, <http://globalheritagefund.org/images/uploads/docs/ GHFSavingOurVanishingHeritagev 1 .Osinglepageview.pdf>.
(98) Bersin, above note 43, pp. 129-131.
(99) Warring, above note 13, pp. 230-231.
(100) Bersin, above note 43, p. 132.
(101) Willet, above note 76.
(102) Warring, above note 42, p. 238.
(103) Jane Levine, 'The Importance of Provenance Documentation in the Market for Ancient Art and Artifacts: The Future of the Market May Depend on Documenting the Past', (2009) 19(2) DePaul Journal of Art, Technology & Intellectual Property Law, 1-16.
(104) Operational Guidelines for the Implementation of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. (2015, UNESCO) 1-48; see also Willet, above note 76, pp. 846-847; Flynn, above note 82, p. xxix.
(105) Borodkin, above note 37.
(106) Brodie, Doole and Watson, above note 32, p. 12.
(107) Bersin, above note 43, pp. 131-132.
(108) Fox, above note 36, p. 254; Nina Lenzner, 'The Illicit International Trade in Cultural Property: Does the UNIDROIT Convention Provide an Effective Remedy for the Shortcomings of the UNESCO Convention?' (1994) 15(3) University of Pennsylvania Journal of International Law, 486-487.
(109) Simon Mackenzie, Going Going, Gone: Regulating the Market in Illicit Antiquities (2005, Institute of Art and Law); see also Bowman, above note 8.
(110) Levine, above note 103; Richard Horwood, 'Planning for Art Investments: Taxation, Valuation, Estate Planning, and Charitable Giving', (2015, Civic Research Institute).
(111) Siehr, above note 24.
(112) Mike Toner, 'Coveting Thy Neighbor's Past', 7 Nov. 1999 ATLANTA J. CONST, at Q4. Cited in Warring, above note 13, p. 239.
(113) Warring, above note 13.
(114) Nemeth, above note 14.
(115) Between 1966 and 1970, the Metropolitan Museum of Art acquired a collection of antiquities dating to the sixth century BC, which had been looted from tumuli in western Turkey some years before. The Museum tried to obscure this, but after the Republic of Turkey commenced proceedings in 1987, the Museum was forced to disclose documents which revealed that its curators did indeed have knowledge of the real provenance of these looted objects: Neil Brodie and Colin Renfrew 'Looting and the World's Archaeological Heritage: the Inadequate Response', (2005) 34 Annual Review of Anthropology, pp. 349-350.
(116) Warring, above note 13.
(117) Robert Poole, 'Looting Iraq', (2008) Smithsonian Magazine <https://www.smithsonianmag.com/ arts-culture/looting-iraq-16813540/>.
(118) Tijhuis, above note 27, p. 160.
(119) Warring, above note 13.
(120) Bersin, above note 42, p. 137.
(121) Bowman, above note 8; also Borodkin, above note 37.
(122) Borodkin, above note 37, p. 409.
(123) Merryman, above note 20, pp. 29-30.
(124) ARCA (sd). 'What is ARCA's Purpose?': <http://www.artcrimeresearch.org/who-we-are/>.
(125) Operational Guidelines for the Implementation of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (2015, UNESCO) 44-46.
(126) Borodkin, above note 37, p. 380.
(127) Tasdelen, above note 23, p. 4.
(128) Borodkin, above note 37, p. 380.
(129) Lyndel Prott and Patrick O'Keefe, "Cultural Heritage' or 'Cultural Property'?' (1992) 1(2) International Journal of Cultural Property, pp. 307-320.
(130) Borodkin, above note 37, p. 409.
(131) Tasdelen, above note 23, p. 4.
(132) Borodkin, above note 37, p. 409; see also UNESCO Operational Guidelines, above note 127.
(133) Borodkin, above note 37, pp. 379-380; Merryman, above note 20, pp. 11-12.
(134) Merryman, above note 20, pp. 11-12.
(135) 'Fighting Illicit Trafficking In Cultural Goods: Analysis Of Customs Issues In The EU'. European Commission, (2017) DG TAXUD, Brussels.
(136) Janene Podesta, 'Saving Culture, but Passing the Buck: How the 1970 UNESCO Convention Undermines its Goals by Unduly Targeting Market Nations', (2008) 16 Cardozo Journal of International and Comparative Law, 464.
(137) UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 1995. (24 June 1995).
(138) Borodkin, above note 37, p. 380; see also Fox, above note 36.
(139) Merryman, above note 20.
(140) Borodkin, above note 37.
(141) Tasdelen, above note 23; also see Borodkin, above note 37.
(142) Siehr, above note 24, pp. 1074-1076.
(143) Tasdelen, above note 23, pp. 3-4.
(144) Siehr, above note 24.
(145) Ibid, pp. 1074-1076.
(146) Tasdelen, above note 23, p. 3-4.
(147) Borodkin, above note 37, pp. 408-409.
(148) Tasdelen, above note 23, pp. 3-4.
(149) Borodkin, above note 37.
(150) Elazar Barkan, 'Amending Historical Injustices: The Restitution of Cultural Property--An Overview', in Elazar Barkan and Ronald Bush, Claiming the Stones, Naming the Bones: Cultural Property and the Negotiation of National and Ethnic Identity, (2002, Getty Research Institute).
(152) Thomas Hylland Eriksen, 'Small Places, Large Issues: An Introduction to Social and Cultural Anthropology', (4th edn, 2015, Pluto Press).
(153) Sophie Delepierre and Marina Schneider, 'Ratification and Implementation of International Conventions to Fight Illicit Trafficking in Cultural Property', in France Desmarais, Countering Illicit Traffic in Cultural Goods: The Global Challenge of Protecting the World's Heritage, (2015, ICOM), pp. 129-139.
(154) Siehr, above note 24, p. 1071.
(155) Tasdelen, above note 23, pp. 2-3; Roger Atwood, Stealing History: Tomb Raiders, Smugglers and the Looting of the Ancient World. (2004, St. Martin's Press).
(156) Barkan, above note 150; Aaron Glass, 'Return to Sender: On the Politics of Cultural Property and the Proper Address of Art', (2004) 9(2) Journal of Material Culture, 115-139.
(157) Alan Audi, 'A Semiotics of Cultural Property Argument'(2007) 14 International Journal of Cultural Property, 131 -167.
(158) Benedicte Savoy, 'The Restitution Revolution Begins', Art Newspaper 16 Feb. 2018 <https:// www.theartnewspaper.com/comment/the-restitution-revolution-begins>.
(159) Emmanuel Macron, 'Le discours de Ouagadougou d'Emmanuel Macron', Le Monde, 29 Nov. 2017 <https://www.lemonde.fr/afrique/article/2017/11/29/le-discours-de-ouagadougou -demmanuel-macron_5222245_3212.html>.
(160) Felwine Sarr and Benedicte Savoy, Rapport sur la restitution du patrimoine culturel africain Vers une nouvelle ethique relationnelle (2018): <http://restitutionreport2018.com/sarr_savoy_fr.pdf>; see also Alexander Herman, IAL Blog, 28 Nov. 2018: <https://ial.uk.com/ french-report-calls-formassive-restitution-of-african-artefacts/>.
(161) Catherine Hickley, 'Culture Ministers from 16 German States Agree to Repatriate Artefacts Looted in Colonial Era', Art Newspaper, 14 March 2019 <https://www.theartnewspaper.com/news/ cultureministers-from-16-german-states-agree-to-repatriate-artefacts-looted-in-colonial-er>.
(162) Arjen Ribbens, 'Musea Voor Volkenkunde Willen Ruimhartig Koloniale Roofkunst Teruggeven', NRC <https://www.nrc.nl/nieuws/2019/03/06/musea-willen-ruimhartig-roofkunstteruggeven-a3937860>.
(163) 'Tentoonstelling Met Ethiopische Roofkunst In Het Victoria & Albert Museum Veroorzaakt Controverse', Knack Weekend, 23 April 2018 <http://weekend.knack.be/lifestyle/reizen/ tentoonstelling-met-ethiopische-roofkunst-in-het-victoria-albert-museum-veroorzaaktcontroverse/ article-normal-1138793.html>; Michel Bouffioux, 'Restitution des Biens Africains Spolies : L'amorce d'un Dialogue en Belgique', Paris Match 19 Oct. 2018, <https://parismatch. be/actualites/societe/189003/restitution-des-biens-africains-spolies-lamorce-dun-dialogue-enbelgique>; 'Carte Blanche: La Belgique est a la Traine sur la Restitution des Tresors Coloniaux', LeSoir, 25 Sept. 2018 <https://plus.lesoir.be/180528/article/2018-09-25/ carte-blanche-labeIgique-est-la-traine-sur-la-restitution-des-tresors-coloniaux>.
(164) Francioni, above note 21, p. 726.
(165) Francesca Fiorentini, 'The Trade of Cultural Property: Legal Pluralism in an Age of Global Institutions', in Jorge Sanchez Cordero, The 1970 UNESCO Convention: New Challenges (2013, UNAM), pp. 103-133.
(167) Tom Christopherson, 'Art Law and the Art Market: Disclosure or Discretion?' Sotheby's Institute of Art: <https://www.sothebysinstitute.com/news-and-events/news/art-law-and-the-art-marketdisclosure-or-discretion/>.
(168) Fiorentini, above note 165, p. 128.
(169) Bowman, above note 8.
(170) Vlasic and Turku, above note 63, p. 1177.
(171) Ibid.; Nathalie Goulet, '171 ESCTER 14 E bis: Terrorism Financing', NATO Parliamentary Assembly , Economics and Security Committee. See also Robert Fisk, 'Isis Profits from Destruction of Antiquities by Selling Relics to Dealers--and then Blowing up the Buildings they Come From to Conceal the Evidence of Looting', Independent, 2 Sept. 2015 <http://www. independent.co.uk/voices/ isis-profits-from-destruction-of-antiquities-by-selling-relics-to-dealersand -then-blowing-up-the-10483421.html>.
(172) Lixinski and Schreiber, above note 7, p. 7.
(173) Vlasic and Turku, above note 63, pp. 1177-1178.
(174) Willet, above note 76, p. 836.
(175) Goulet, above note 171; also see Willet, above note 76.
(176) Janpiet Callens, personal communication, 18 June 2018.
(177) Dian Triansyah Djani, 'Twenty-Third Report of the Analytical Support and Sanctions Monitoring Team Submitted Pursuant to Resolution 2368 (2017) Concerning ISIL (Da'esh), Al-Qaida and Associated Individuals and Entities', 15 Jan. 2019, UN Security Council, p. 19.
(178) United Nations Security Council. Resolution 2199 (2015) Adopted by the Security Council at its 7379th meeting, on 12 Feb. 2015, p. 5.
(179) It is worth noting that the art market lobby against the new EU Regulation on the import of cultural goods is a strong supporter of the argument that such a link does not exist: V. J. Geerling, 'An Unnecessary and Flawed Regulation that Will Harm the Art Market. New Regulatory Challenges for Collectors. Retrieved from IADAA', BRAFA Talk, 30 Jan. 2019: <https://iadaa.org/wp-content/uploads/2019/02/BRAFA-Talk-by-V.J.-Geerling-30-01-2019.pdf>.
(180) Djani, above note 177, p. 19.
(181) Personal communication, 28 June 2018.
(182) Warring, above note 13.
(183) Nemeth, above note 14.
(184) Francioni, above note 21 and Fiorentini, above note 165.
(185) Bersin, above note 43, pp. 135-138.
(186) Warring, above note 13.
(187) Merryman, above note 20, p. 32.
(188) Lenzner, above note 108, pp. 475-476.
(189) The first major international Convention to protect cultural heritage was the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict which seeks to protect cultural property from destruction and looting during armed conflict: see, inter alia, Vlasic and Turku, above note 63 and which was also influential in the development of key concepts and principles regarding cultural property protection: see Warring, above note 13. The other Conventions are the 1970 UNESCO Convention on the Means of Prohibiting and Preventing Illicit Import, Export and Transfer of Ownership of Cultural Property; the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage; the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage; the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage; and the 1995 UNIDROIT Convention on Stolen and Illicitly Exported Cultural Objects.
(190) Francioni, above note 21, pp. 722-726.
(191) Willet, above note 76; see also Warring, above note 13.
(192) It is considered to be the first and most important international agreement aimed at controlling the illicit trade in cultural property: see Fisman and Wei, above note 31
(193) UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970, 14 Nov. 1970.
(194) Ibid; Fisman and Wei, above note 31, pp. 84-85; also see Siehr, above note 24, pp. 1077-1078.
(195) Delepierre and Schneider, above note 153; see also Warring, above note 13, pp. 252-253; and Fox, above note 36, pp. 255-256.
(196) Delepierre and Schneider above note 153.
(197) Ibid, 'Illicit trafficking of Cultural Property: States Parties', UNESCO <http://www.unesco.org/ new/en/culture/themes/illicit-trafficking-of-cultural-property/1970-convention/states-parties/>; below, note 198; see also Borodkin above note 37.
(198) UNESCO Convention, Art. 7(b)(ii),; Delepierre and Schneider, above note 153.
(199) Delepierre and Schneider, above note 153.,
(200) Patrick O'Keefe, Protecting Cultural Objects: Before and After 1970 (2017, Institute of Art and Law)
(201) Lyndel Prott, 'Strengths and Weaknesses of the 1970 Convention: An Evaluation 40 Years after its Adoption', Background paper, second edition for participants in the Second Meeting of States Parties to the 1970 Convention, 1-12. Paris, 2012.
(202) Lenzner, above note 108, pp. 478-479.
(203) Lyndel Prott, 'UNESCO and UNIDROIT: A Partnership Against Trafficking in Cultural Objects', (1996) 1(1) Uniform Law Review, 59-71, pp. 4-5.
(204) Fox, above note 36; Lenzner, above note 108; Prott, above note 203.
(205) Atwood, above note 155.
(206) Lenzner, above note 108, p. 479.
(207) Borodkin, above note 37, p. 389; Lenzner, above note 108, p. 480.
(208) Merryman, above note 20; Bersin, above note 43; Lenzner, above note 108.
(209) Warring, above note 13.
(210) Delepierre and Schneider, above note 153.
(211) See the discussion at pages 34-39 of Lyndel Prott, Commentary on the UNIDROIT Convention. (1997, Institute of Art and Law).
(212) Ruth Redmond-Cooper, 'Time Limits in Art and Antiquity Claims (Parti)', (1999) IV Art Antiquity and Law 323 and Part II (2002) V Art Antiquity and Law, 185.
(213) Craig Forrest, 'Strengthening the International Regime for the Prevention of the Illicit Trade in Cultural Heritage', 4(2) (2003) Melbourne Journal of International Law, 592-610.
(214) See the discussion by Lyndel V. Prott, above note 211 at pp. 28-32.
(215) Delepierre and Schneider, above note 153; Fox, above note 36; and Warring, above note 13.
(216) Lenzner, above note 108.
(217) Warring, above note 13.
(218) Forrest, above note 213.
(219) According to its latest update on 24 Feb. 2019, the 1995 UNIDROIT Convention had 46 Contracting States (UNIDROIT, 2019) while the 1970 UNESCO Convention had been ratified by 137 States Parties (UNESCO, sd).
(220) Forrest, above note 213.
(221) Patty Gerstenblith, 'Implementation of the 1970 UNESCO Convention by the United States and Other Market Nations', in Jane Anderson and Haidy Geismar, The Routledge Companion to Cultural Property, (2017, Routledge Press).
(222) 'Conventions--Luxembourg', UNESCO: <https://en.unesco.org/countries/luxembourg/conventions>; 'Conventions--Austria', UNESCO, <https://en.unesco.org/countries/austria/conventions>.
(223) Krisztina Binder, Regulating Imports of Cultural Goods. (2018, European Parliamentary Research Service), p. 2; 'Latvia Accedes to the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects--46th Contracting State', UNIDROIT <https://www.unidroit.org/89news-and-events/ 2561-latvia-accedes-to-the-1995-unidroit-convention-on-stolen-or -illegally-exported-cultural-objects-46th-contracting-state>.
(224) European Commission, 2017, above note 135.
(225) Romania, Hungary and Lithuania were not yet EU Member States at that time (European Commission, 2016).
(226) Croatia was not yet an EU Member State at that time: European Commission:'From 6 to 28 Members'. Retrieved from European Neighbourhood Policy and Enlargement Negotiations: <https://ec.europa.eu/neighbourhood-enlargement/policy/from-6-to-28-members_en>.
(227) Slovenia and Slovakia were not yet EU Member States at that time: European Commission, above note 226.
(228) 'Status Map of the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 1995)', UNIDROIT 12 May 2017 <https://www.unidroit.org/status-cp?id=1769>.
(230) 'UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 1995) Status', UNIDROIT <https://www.unidroit.org/status-cp>.
(231) UNIDROIT. (sd). 'Latvia Accedes to the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects--46th Contracting State'. Retrieved from UNIDROIT: <https://www. unidroit.org/89-news-and-events/2561 -latvia-accedes-to-the-1995-unidroit-convention-on-stolenor -illegally-exported-cultural-objects-46th-contracting-state>.
(232) Delepierre and Schneider above note 153, p. 137.
(233) Siehr, above note 24.
(234) Delepierre and Schneider, above note 153, pp. 135-136.
(235) Gerstenbl ith, above note 213.
(236) Marie Cornu, 'Implementation of the 1970 UNESCO Convention in Europe', (2012) Background paper by Marie Cornu for the participants in the second meeting of States Parties to the 1970 Convention, pp. 1-7.
(238) Binder, above note 223; European Commission. 'From 6 to 28 members', European Neighbourhood Policy and Enlargement Negotiations (6 Dec. 2016) <https://ec.europa.eu/ neighbourhood-enlargement/policy/from-6-to-28-members_en>.
(239) For a complete overview of the legislation of all the EU Member States concerning illicit cultural property trafficking, see European Commission above note 229, pp. 75-78.
(240) Ibid, European Commission; above note 238
(241) Cornu, above note 236.
(242) Binder, above note 223.
(244) Laura Zandersone, 'Initial Appraisal of a European Commission Impact Assessment--Import of Cultural Goods', Briefing, European Parliamentary Research Service, Ex-Ante Impact Assessment Unit; see also Zygierewicz and Mendez Juez above note 1.
(245) Zygierewicz and Mendez Juez, above note 1.
(246) Gould, above note 1.
(247) European Commission, 'Proposal for a Regulation of the European Parliament and of the Council on the Import Of Cultural Goods'. Brussels, 13 July 2017, p. 3,.
(248) European Commission, impact Assessment Accompanying the Document Proposal for a Regulation of the European Parliament and of the Council on the Import of Cultural Goods', 7 July 2017, 1-53.
(249) Katerina Linos and Tom Pegram, 'The Language of Compromise in International Agreements', 70 International Organization, 587-621.
(250) Binder, above note 223.
(251) As laid down in the Rules of Procedure of the European Parliament (European Parliament, 2017)
(253) Binder, above note 223; 'Procedure File of Regulation on the Import of Cultural Goods', European Parliament Legislative Observatory, 14 April 2018 <http://www.europarl.europa. eu/oeil/popups/ficheprocedure.do?lang=en&reference=2017/0158(OLP)>; 'Legislative Train Schedule: A Balanced and Progressive Trade Policy to Harness Globalization' European Parliament <http://www.europarl.europa.eu/legislative-train/theme-a-balanced-and -progressivetrade-policy-to-harness-globalisation/file-import-of-cultural-goods>.
(254) Ibid, European Parliament.
(255) 'European Union Regulations'. EUR-Lex (30 Aug. 2015) <https://eur-lex.europa.eu/legal-content/ EN/ALL/?uri=LEGISSUM:114522>.
(256) Its application in the United Kingdom remains quite uncertain, depending on the terms on which the United Kingdom will leave the European Union, see above, Gould note 1.
(257) Article 8.
(258) Article 9; see also Gould, above note 1.
(259) European Commission, 13 July 2017, Proposal for a Regulation of the European Parliament and of the Council on the Import of Cultural Goods; Binder, above note 223, pp. 4-5.
(260) 'Fight Against Terrorism', European Council/Council of the EU, 20 March 2018 <http://www. consilium.europa.eu/en/policies/fight-against-terrorism/>, p. 7.
(261) Article 4.
(262) Article 5.
(263) Article 8.
(264) Article 12.
(265) Preamble, paras 23 and 27.
(266) Article 11.
(267) Daniel Dalton and Alessia Maria Mosca, 'Draft Report on the Proposal for a Regulation of the European Parliament and of the Council on the Import of Cultural Goods', European Parliament, Committee on International Trade, Committee on the Internal Market and Consumer Protection. (2018, European Parliament).
(268) Ibid., p. 25.
269 Merryman, above note 20; Bersin, above note 43; Lenzner, above note 108.
(270) Article 1: 'cultural goods' means any item which is of importance for archaeology, prehistory, history, literature, art or science as listed in the Annex (which provides an exhaustive list of particular categories of goods).
(271) I.e. either that source country cannot be reliably determined, or the items were taken out of the source country before 24 April 1972 (when the 1970 UNESCO Convention came into force).
(272) Gould, above note 1.
(273) Tijhuis, above note 27; Warring, above note 13.
(274) Borodkin, above note 37; Fisman and Wei, above note 31.
(275) Warring, above note 13; Fox, above note 36.
(276) Delepierre and Schneider , above note 153.
(277) Borodkin, above note 37; Lenzner, above note 108; and UNESCO, 1970.
(278) Zandersone, above note 244.
(279) Council of the EU, 2018, p. 13.
(280) Personal Communication, 28 June 2018.
(281) 'Fight Against Terrorism', European Council/Council of the EU, 20 March 2018 <http://www. consilium.europa.eu/en/policies/fight-against-terrorism/>; 'Europe's War On Terror', European Council on Foreign Relations, 23 June 2017 <https://www.ecfr.eu/article/essay_europes__war_on_ terror>.
(282) 'Security Union: Cracking Down on The Illegal Import of Cultural Goods Used to Finance Terrorism', European Commission Press Release Database, (13 July 2017) <http://europa.eu/ rapid/press-release_IP-17-1932_en.htm>.
(286) Tasdelen, above note 23.
(287) BBC News, 'IS 'Caliphate' Defeated but Jihadist Group Remains a Threat.' BBC News, (23 March 2019) <https://www.bbc.com/news/world-middle-east-45547595>.
(288) Eric Schmitt, 'ISIS Fighters are Not Flooding Back Home to Wreak Havoc as Feared', Retrieved from New York Times 22 Oct. 2017 <https://www.nytimes.com/2017/10/22/us/politics/ fewer-isisfighters-returning-home.html>.
(289) Patrick Cockburn, 'Isis-Inspired Terror Attacks in Europe Give the Impression it's Still a Global Force. It's Not', Independent (23 March 2018): <https://www.independent.co.uk/news/ world/europe/isis-europe-terror-attacks-france-shooting-uk-france-terrorist-groups-islamist danger-a8270941.html>.
(290) 'EU Budget for the Future', European Commission 2 May 2018 <https://ec.europa.eu/commission/ news/eu-budget-future-2018-may-02_en>. 'Fight Against Trafficking of Cultural Goods', European Commission, <https://ec.europa.eu/culture/policy/culture-policies/trafficking_en>.
(291) Posner, above note 67.
(292) Nils Muiznieks, 'Human Rights in Europe: From Crisis to Renewal?' Council of Europe.
(293) Ibid, p. 129.
(294) Kostas Chrysogonos, 'Opinion on the Proposal for a Regulation of the European Parliament and of the Council on the Import of Cultural Goods', 4 July 2018 (European Parliament).
(295) Christopherson, above note 167.
(296) Levine, above note 103.
(297) Christopherson, above note 167.
(298) Martin Bailey, 'Art Dealers Slam Proposed European Union Licence Regulations' Art Newspaper, 15 June 2018: <https://www.theartnewspaper.com/news/dealers-slam-proposed-new-licenceregulations>.
(299) Geerling, above note 179.
(300) Bailey, above note 298.
(301) 'Legislative Train Schedule: A Balanced and Progressive Trade Policy to Harness Globalization' European Parliament <http://www.europarl.europa.eu/legislative-train/theme-a-balanced-andprogressive -trade-policy-to-harness-globalisation/file-import-of-cultural-goods>.
(302) Council of the EU, Interinstitutional File: 2017/0158(COD) (16 Dec. 2018), <http://data. consilium.europa.eu/doc/document/ST-15494-2018-INIT/en/pdf> p. 7.
(303) Neil Brodie, 'The Antiquities Market: It's All in a Price', (2014) 7(1) Heritage & Society, 32-46.
(304) Alina Girshovich, 'What's it Worth? The Art of Art Valuation', Sotheby's Institute ofArt 26 March 2018 <https://www.sothebysinstitute.com/news-and-events/news/whats-it-worth-the-art-of-artvaluation/>.
(306) Philippe Marchiset, EU Regulation on the Import of Cultural Goods Adopted. Retrieved from ILAB (22 March 2019): <https://ilab.org/articles/eu-reguIation-import-cultural-goods-adopted>.
Maja R.J. Dehouck, Master's Thesis, Presented to the Faculty of Law at Tilburg University, the Netherlands for the degree of LL.M. International and European Law, under the supervision of Prof. Dr. N.M. Rajkovic.
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|Author:||Dehouck, Maja R.J.|
|Publication:||Art Antiquity & Law|
|Date:||Apr 1, 2019|
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