Report of the Government Administration Committee

Transcription

1 International treaty examination of United Nations Educational, Scientific and Cultural Organisation Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 and Organisation for the Unification of International Law Convention on Stolen or Illegally Exported Cultural Objects 1995 Report of the Government Administration Committee Contents Recommendation 2 Introduction 2 Accession 2 Obligations forward looking 3 Enforcement 3 Antique dealers 3 Payment of compensation 4 State Parties to UNIDROIT Convention 4 Risk assessment 4 Appendix A Approach to examination 6 Appendix B National interest analysis 7 Appendix C National interest analysis 22

2 International treaty examination of United Nations Educational, Scientific and Cultural Organisation Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 and Organisation for the Unification of International Law Convention on Stolen or Illegally Exported Cultural Objects 1995 Recommendation The Government Administration Committee has conducted an international treaty examination of the United Nations Educational, Scientific and Cultural Organisation Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 and the Organisation for the Unification of International Law Convention on Stolen or Illegally Exported Cultural Objects 1995 and recommends, by majority, that the House takes note of this report. Introduction The United Nations Educational, Scientific and Cultural Organisation Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 and the Organisation for the Unification of International Law Convention on Stolen or Illegally Exported Cultural Objects 1995 (UNIDROIT) were presented to the House on 7 July The national interest analyses were also presented on 7 July 2004 in accordance with Standing Orders 382 and This report sets out our examination of the conventions. The national interest analyses for both conventions are appended to this report. Accession While the majority of us support New Zealand acceding to both conventions, we note that accession to the UNESCO Convention has not been a priority of successive governments despite New Zealand having acknowledged the need to protect its cultural heritage as early as We understand that the growth of the theft and the illicit export of items of significant cultural value in recent times was the impetus for the New Zealand Government to seek accession to the UNESCO Convention. We note the convention provides specific 1 An amended national interest analysis for the UNIDROIT Convention was presented on 28 July Maori Antiquities Act

3 structures for international cooperation between States and the cross-border recovery of items. We note that the UNESCO Convention is not without shortcomings while we understand it has played an important role in the suppression of illegal trade, the Ministry for Culture and Heritage tells us that it has provided only limited means for the recovery of stolen cultural items. For example, in the case of Attorney General of New Zealand v Ortiz [1984] 1 AC 1 (HL) the New Zealand Government sought to recover a set of illegally exported Maori pataka panels, but the English courts refused to return the panels on the ground that New Zealand could not enforce a domestic law in a foreign country. We note that the UNIDROIT Convention, while not retrospective, seeks to address such problems. The UNIDROIT Convention complements the UNESCO Convention and allows for a person to sue in a foreign court for the return of stolen cultural objects. It also requires that stolen or illegally exported objects are returned regardless of whether the buyer purchased them in good faith. At present, only 23 States are a party to the UNIDROIT Convention compared with 103 States, which have ratified the UNESCO Convention. Obligations forward looking We note that both the UNESCO and UNIDROIT Conventions are not retrospective in their application. The provisions of neither convention will apply to objects stolen or illegally exported before the date of New Zealand s accession. It is a concern that it will remain problematic for the New Zealand Government to recover stolen or illegally exported cultural objects should another situation arise along the lines of the Ortiz case. Enforcement We draw attention to articles 5 and 14 of the UNESCO Convention that require signatory nations to provide an adequate budget to enforce the provisions of the convention, including the development of a national inventory of protected property (article 5(b)). Some of us are concerned that accession to both treaties may create a new layer of bureaucracy that could prove to be onerous and expensive. We note, however, that a number of Government departments, in particular the Ministry for Culture and Heritage, already perform most of the functions outlined in both conventions. Antique dealers Article 10(a) of the UNESCO Convention requires antique dealers to maintain a register, which records the origin of each item of cultural property as well as the name and address of the supplier. We note that the New Zealand Antique Dealers Association may not have been consulted as to the specific requirements of article 10(a). Internet sales We expressed our concern that both conventions may not apply to cultural objects bought and sold over the Internet (including on-line auctions). However, we were assured that the provisions of both conventions apply to internet sales. 3

4 Buyer-beware approach We also note the strong buyer-beware approach to the UNIDROIT Convention. Under the convention, the purchasers of a cultural object, even when purchased in good faith from a reputable seller, runs the risk of losing their property should a claimant take steps to recover the cultural object under the UNIDROIT Convention. Payment of compensation We are concerned about the payment of compensation under article 4 of the UNIDROIT Convention. The ministry clarified that claimants of cultural objects under the UNIDROIT Convention are required to pay a sum in compensation to innocent purchasers for the loss of their property. We consider this may discourage potential claimants from seeking the return of a cultural object on the grounds that their efforts will ultimately go unrewarded. New Zealand's position The Ministry for Culture and Heritage confirmed that during the negotiation of the UNIDROIT Convention in 1992, New Zealand was supportive to the idea of compensating bona fide purchasers who acquired a cultural object in good faith. We note that New Zealand considered it necessary for the UNIDROIT Convention to include provisions dealing with compensation for bona fide purchasers, otherwise the convention would receive little support from participating nation States. We also note that New Zealand s position on this issue is consistent with the final provision adopted in the UNIDROIT Convention. State Parties to UNIDROIT Convention Only 23 nations are currently a party to the UNIDROIT Convention. We note that our major trading partners are not amongst the present signatories. The Ministry for Culture and Heritage told us that it was confident that by acceding to the convention, New Zealand s example would encourage other non-party nations to do likewise. The ministry also indicated that New Zealand would work effectively to encourage other nations to accede to the UNIDROIT Convention. We recognise that the UNIDROIT Convention will become more valuable to New Zealand s interests as more parties sign-up to the convention. Risk assessment Changes to Standing Orders effective from 16 December 2003 now see subject committees undertaking international treaty examinations. 3 Given that subject committees may only have the opportunity to undertake treaty examinations periodically, we consider that it would be useful for a risk assessment to be included in the national interest analysis. Such assessments could be similar to the regulatory impact statements prepared whenever a bill substantially alters existing arrangements. We consider that including a risk assessment in the national interest analysis would assist committees to undertake more comprehensive scrutiny of those treaties referred for examination. 3 Report of the Standing Orders Committee, Review of Standing Orders, December 2003, I.18B, p 79. 4

5 The national interest analyses for both the UNESCO and UNIDROIT Conventions are appended to this report. 5

6 Appendix A Approach to examination We met on 5, 12, and 26 August 2004 to consider the international treaty examination of the United Nations Educational, Scientific and Cultural Organisation Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 and the Organisation for the Unification of International Law Convention on Stolen or Illegally Exported Cultural Objects Our examination took 1 hour and 40 minutes. We heard evidence from the Ministry for Culture and Heritage and the Ministry of Foreign Affairs and Trade. Committee members Dianne Yates (Chairperson) Shane Ardern (Deputy Chairperson) Steve Chadwick Hon David Cunliffe Lindsay Tisch Evidence and advice received In addition to the treaties and the national interest analyses, we considered the following evidence during the examination: Copy of New Zealand National Commission for UNESCO Annual Report July 2002 June 2003 and information pamphlet Written response to supplementary question, provided by Ministry for Culture and Heritage, dated 12 August 2004 Briefing paper, provided by Ministry for Culture and Heritage, dated 4 August

7 Appendix B National interest analysis United Nations Educational, Scientific and Cultural Organisation Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 Date of proposed binding treaty action It is proposed that New Zealand lodge an instrument of accession to the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970, after consideration of the convention by Parliament in accordance with Standing Orders, and the passage of amendments to the Antiquities Act 1975 necessary to implement the convention. The UNESCO Convention would enter into force with respect to New Zealand 3 months after the deposit of New Zealand s instrument of accession. It is proposed that New Zealand consider accession to the Organisation for the Unification of International Law Convention on Stolen or Illegally Exported Cultural Objects 1995 (UNIDROIT) at the same time as its accession to the UNESCO Convention. The advantages of considering accession to the UNIDROIT Convention in tandem with the UNESCO Convention are noted below. A national interest analysis also has been prepared for the UNIDROIT Convention and should be read as a complement to this analysis. Reasons for New Zealand to become party to the treaty Background In recent decades, growth in art markets and in the value of cultural property has substantially increased the illicit traffic of cultural objects. 4 The illicit trade now forms a global industry with an annual value estimated at between US$4.5 billion and US$10 billion, compared with about US$1 billion 10-years ago. 5 Such trade ranks alongside drugs, money laundering and illegal arms trading as one of the largest international criminal industries. Currently, only 5 to 10 percent of stolen objects are ever recovered. 6 The unregulated trade provides an incentive for the pillage of archaeological sites, historic complexes and religious monuments, and the theft of important objects from public and private sources. 4 United Kingdom Museums Association (2000), Report of the United Kingdom Ministerial Advisory Panel on Illicit Trade, December 2000, INTERPOL website. 5 INTERPOL, French insurance group, Argos. 6 INTERPOL, cited in United Nations Educational, Scientific, Cultural Organisation, No to Illicit Traffic in Cultural Property, and Illicit Antiquities Research Centre, Culture without Contest, Newsletter, Issue 1, Autumn

8 Cultural objects are the only category of valuable property traded internationally for which documents of title are not required: land, shares, financial transactions, shipping, and other commodities all require such records. The domestic heritage legislation of many States has not successfully limited this crossborder traffic, or enabled States or individuals to recover stolen or illegally exported objects. There is a need for international cooperation to address these problems. The traffic of cultural objects in New Zealand New Zealand cultural objects attract international interest and are potentially liable to illicit export. For example, taonga Maori attract increasingly high prices on international ethnography and art markets. International markets value New Zealand geological and biological specimens because they are unique to this country and are a finite scientific resource. Heritage objects such as early New Zealand paintings, traction engines, classic yachts, and folk art also attract international demand. Three prosecutions have been made under the Antiquities Act 1975 and the Customs and Excise Act 1996 relating to illegal exports of cultural objects. Twenty-five objects have been refused export permission since 1993, and agreement has been reached for the return of three objects exported without permission. 7 It is believed that a number of other important objects have left New Zealand in contravention of export regulations, although firm evidence of this is difficult to obtain. While it is not likely that New Zealand is a major destination for objects illegally exported from other countries, it is generally accepted that such objects have been imported and now form part of private or New Zealand public collections and that this may occur in the future. Further, New Zealand is a likely transit State for objects obtained illegally or exported from their countries of origin, particularly from the Pacific States, and forwarded to major markets such as Singapore and Hong Kong. It is also suspected that objects have entered New Zealand under false identification so as to disguise their heritage value or to hide the circumstances of their acquisition or export. New Zealand may then be identified as the country of origin on the import certification of destination States. 8 This disguises the true country of origin where that country is known to be vulnerable to the illicit trade. No Pacific States are members of the UNIDROIT or UNESCO conventions. Problems of recovery of illegally exported cultural objects The difficulty of recovering cultural objects once they have been stolen and illicitly exported is the central problem in addressing the illicit trade in cultural objects. While items may currently be recovered through diplomatic channels or bilateral agreements between States, individuals seeking recovery of a cultural object must do so through the Courts of 7 For example, the prosecution of a Japanese film crew illegally exporting Moa bones, and the return of a Maori teko teko, and a canoe bailer from Australia. 8 For example, Museum of New Zealand, Te Papa Tongarewa possible Indonesia temple statuary being described as a garden sculpture. 8

9 the State in which the object is located. There are a number of legal and practical difficulties that frustrate efforts to recover objects through either means: While export of a cultural object may be illegal under the laws of the State-of-origin, those laws are not enforceable in the State that received the object. Any action for recovery of the object must be made under the laws of the receiving State. This may be problematic if the import of the object was not illegal under the receiving State s law. The case of Attorney-General of New Zealand v Ortiz [1984] considered the New Zealand Government s claim for the recovery of the illegally exported Motunui pataka panels. The English Court of Appeal stated that the New Zealand Government s claim for the recovery of the panels from the United Kingdom should fail on the ground that it would involve the enforcement of a foreign law. (The Court of Appeal and ultimately the House of Lords, however, decided the case on the basis that the then applicable legislation did not automatically vest title to illegally exported artifacts in the Crown refer to Annex One of this Appendix). The domestic laws of some States, in particular continental Europe, but not New Zealand, protect the title of a good faith (bona fide) purchaser of goods, thus extinguishing a claim of return of the illegally exported or stolen cultural object. Traffickers in stolen objects have exploited these laws by selling stolen objects in countries where good faith purchasers are protected. It is difficult to reach bilateral or multilateral agreements or arrangements with other States for the return of a cultural object. It can be expensive and inconvenient to litigate in a foreign country. It is often important that an illegally exported item of cultural significance is returned to the State-of-origin rather than its loss compensated. There may be sensitive political and legal circumstances surrounding the acquisition of objects that preclude action for recovery, especially those acquired in the distant past or during periods of war or occupation. Proving the origin of an object can be difficult given the ease with which an object s origin can be hidden or falsified to acquire the appearance of legitimacy. UNESCO Convention The only solution to such problems is the establishment of specific structures for international cooperation between states and the cross-border recovery of objects. The UNESCO Convention, which was concluded in 1970, was developed in response to worldwide concern at the unregulated trade in significant cultural objects. By April 2004 there were 103 State Parties to the convention, including Australia, United Kingdom, Canada and the United States of America. The UNESCO Convention recognises the importance of international cooperation to protect cultural property. Each State Party specifically designates items of archaeological, historic, literary, artistic, or scientific importance as cultural property for the purposes of the convention. The convention then establishes a framework for cooperative action between State Parties for the prevention of unauthorised trade in that cultural property and the return of illicitly traded cultural property through diplomatic channels, based on the principle that the unauthorised import, export and transfer of cultural property is illicit. 9

10 Advantages and disadvantages to New Zealand of the treaty entering into force The advantages to New Zealand of accession to the UNESCO Convention include the following: accession by New Zealand will contribute to the number of State Parties, which in turn improves the convention s efficacy as a means of recovering objects between participants accession would reduce the likelihood of theft and illegal excavation of objects in New Zealand for sale onto the export market accession would help reduce international demand for illicitly obtained New Zealand objects because the possibility of government action lessens buyers incentive to acquire objects with uncertain origin objects stolen from inventoried collections of museums, or religious or secular public monuments or similar institutions in New Zealand would be required to be returned accession would support New Zealand s participation in the legitimate international trade in cultural objects, that is, cultural objects not designated as cultural property under the convention by increasing market certainty accession would demonstrate New Zealand s commitment to the international community s collective action against the illicit trade accession may decrease the incentive for exploitation of Pacific States cultural heritage by making the transit of objects through New Zealand more difficult, should Pacific States decide to accede to the convention in future. The disadvantages of New Zealand s accession primarily relate to the convention s shortcomings: the convention does not create a specific regime that enables the recovery of the full range of illegally exported objects it does not address the problems of the inability for New Zealand to invoke foreign laws for the return on New Zealand objects and the protection given to good faith purchasers in foreign States it requires only that objects stolen from inventoried collections of museums and similar institutions are returned many developing countries do not have inventoried collections, and this limits the convention s international effectiveness it does not provide for the return of objects stolen from private owners or those illegally removed from archaeological sites. The convention s generality on a number of points has allowed key States to take a very narrow view of their obligations. 9 For example, the United States of America and 9 Australia and Canada treat objects exported illegally from other States as being illegally imported. The United States of America and Germany take the view that article 3 imposes no further specific obligations. The Untied Kingdom considered that the only amendment to its law required to comply was the addition of further criminal 10

11 Switzerland, limit the application of discretionary provisions of the convention, relating to import controls, to those countries with which they have concluded bilateral treaties. Arguably, this narrow interpretation does not give effect to the multilateral intentions envisaged by the UNESCO Convention. If New Zealand were to accede, it would receive different kinds and degrees of support for return of New Zealand cultural objects discovered in the territory of other State Parties. Equally, New Zealand would have a measure of choice as to how to implement this provision in New Zealand law for the benefit of other State Parties. The UNIDROIT Convention was developed to complement the UNESCO Convention and addresses its shortcomings, in particular the problem of recovery of objects. The UNIDROIT Convention creates a specific right in a foreign State to sue for the return of significant cultural objects: any person may claim restitution of a stolen object and States may seek the return of significant cultural objects illegally exported to other States. The coverage of the UNIDROIT Convention includes stolen and illegally excavated objects. It provides a detailed judicial framework within which New Zealand could comply with the broader obligations of the UNESCO Convention. Where other countries have ratified the UNIDROIT Convention, New Zealand will benefit from more standard enforcement mechanism overseas. On balance, the benefits of New Zealand acceding to the UNESCO Convention outweigh the disadvantages, particularly in respect of its joint operation with the UNIDROIT Convention. There are likely to be more cases of New Zealand cultural objects being illicitly exported to foreign countries than the reverse. Further, the UNESCO Convention may reduce incentives for using New Zealand as a conduit for illicit trade of Pacific Island cultural objects, thereby benefiting Pacific States. Obligations The obligations of the UNESCO Convention are forward looking: they apply only to cultural property illegally exported or imported after the date of entry into force of the convention in both the State-of-origin and the State of an object s present location. Objects stolen or illegally exported prior to that time are not subject to claims for return. States, rather than individuals exercise the obligations and rights of the convention. The framework within which States cooperate to combat the illicit traffic, includes: the application of the convention to cultural property which is defined as those items specifically designated by each State as important for archaeology, prehistory, history, literature, art or science (article 1) a general obligation to cooperate with other States in combating illicit trafficking in cultural property (article 2) agreeing that the import, export or transfer of ownership of cultural property shall be illicit (article 3) offences. Swiss legislation limits the provisions relating to import controls to those States which Switzerland has concluded bilateral treaties. 11

12 establishing a national cultural heritage service, including, as appropriate, promoting the development of museums and other institutions to preserve cultural property, maintaining national inventories, establishing ethical rules for cultural institutions, (article 5) requiring an export certification system for cultural property and prohibiting export without a certificate (article 6) discouraging the acquisition of illegally exported cultural property by museums (article 7(a)) assisting States whose cultural patrimony is in jeopardy (article 9) promoting education of antique dealers and the public to protect cultural heritage, as appropriate for each country (article 10) respecting the cultural heritage of dependent territories, which for New Zealand includes Tokelau and the Cook Islands (article 12) providing adequately funded services to prevent illicit export (article 14). The provisions, which directly address the recovery of illegally exported objects, are limited. Article 7(b) obliges the prohibition of the import, and the recovery and return, a t the request of a State Party, of cultural property stolen from a museum or a religious or secular public monument or similar institution, and listed in the institution s inventory. This is backed by the imposition of penalties on offenders (article 8). The measures required to implement these obligations are discussed later in this analysis. Economic, social, cultural, and environmental effects The loss of a nation s cultural heritage through the illicit trade reduces its capacity to develop sustainable social, economic, and cultural well being. The touchstones of tradition, spirituality and history are lost. While the objects illegally exported from New Zealand are probably small in number, they have had significant social and cultural value. The loss of Maori objects that embody tribal histories and mana, such as the Motunui pataka panels, impacts on Maori tribal identity. The loss of historical objects deprives New Zealand of our markers of shared heritage and national identity. Natural heritage items such as Moa bones and fossils are unique to New Zealand, irreplaceable and finite. Illegal excavations of archaeological sites destroy critical contextual information about the site and the objects within it. Without this information objects lose their meaning as evidence of the past and have value only for their antiquity or aesthetic quality. The illicit traffic damages the valuable legitimate international trade in cultural objects by distorting the market through corruption, crime and the loss of confidence on the part of legitimate participants. Legitimate international trade is of less cultural concern to New Zealand, as it may not involve export of unique or rare cultural objects. Accession to the convention would complement New Zealand s participation in the UNESCO World Heritage Convention and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The World Heritage Convention seeks to protect cultural and natural heritage sites of outstanding universal value. CITES 12

13 seeks to address the dangers of uncontrolled international trade on populations of wildlife by requiring the import, export or re-export of listed species to be authorised. Some cultural objects designated under the UNESCO Convention may be made of materials from endangered animals and therefore also subject to the export/import control provisions under CITES. Together these conventions recognise that endangered species, heritage sites, and cultural objects are all vulnerable and irreplaceable world resources. Costs It is not possible to anticipate the costs associated with New Zealand s accession to the UNESCO Convention. It is likely, however, that the convention will be invoked only on few occasions because of the small number of important cultural objects entering and leaving New Zealand. There are no subscription costs for the New Zealand Government associated with participation in this convention. All expenses associated with the return and delivery of the objects are borne by the requesting State. Costs will therefore arise where New Zealand seeks to have a particular object returned. These will vary according to the circumstances of each occasion when the convention is invoked. For example, costs may involve locating expertise to authenticate an object possibly including scientific testing, State-to-State liaison, interpretation and translation, the storage, packaging, temporary conservation, accompaniment and shipping of objects, and compensation of a good faith purchaser. The New Zealand Customs Service advises that goods imported into New Zealand that have been stolen in an overseas country can be seized and are forfeit to the Crown under section 225 and 226 of the Customs and Excise Act Enforcement of the controls on goods that have been illegally exported from their country of origin (other than stolen) will be a new task that will impose additional enforcement costs on those occasions when State Parties to the conventions request the return of an object. These costs are recoverable from the requesting State. The convention provides that State Parties must not impose customs duties or other charges on returned cultural objects. Future protocols Article 25 provides that the convention may be revised by the General Conference of UNESCO, on the basis of a two-thirds majority vote. Any such revision is subject to ratification, acceptance or accession and therefore binds only the states that have expressed consent to be bound. Implementation New Zealand law is already consistent with many of the obligations of the UNESCO Convention. The intentions of articles 2 and 5 are substantially met by New Zealand s cultural heritage legislation, including the Antiquities Act 1975, the Historic Places Act 1993, and the Museum of New Zealand Te Papa Tongarewa Act 1992, including a national museum service. These articles are also met by virtue of New Zealand s cultural heritage infrastructure, including the body of professional and ethical standards adopted by heritage sector institutions and organisations. 13

14 The obligations of articles 6 and 14 may be met by the cultural heritage export certification requirements of the Antiquities Act and the operations of the New Zealand Customs Service. The requirements of article 10 may be met by the publicity associated with the Antiquities Act s export regulations and other provisions. The registration of found Maori artefacts and the regulation of the domestic trade in artefacts may meet the intention of the requirement to maintain a register of cultural property as appropriate for each country. Some legislative change, however, is required before New Zealand can accede to the UNESCO Convention. The Cabinet has agreed that amendments to the Antiquities Act 1975 will introduce provisions enabling New Zealand to participate in the convention. The Antiquities Amendment Bill, to be introduced in Parliament in 2004, will consider these amendments, including: the compensation of good faith purchasers (article 7(b)(ii) the recovery and return of illegally imported objects (article 3) prohibiting the import of objects stolen from museums and similar institutions (article 7(b)(i) and appropriate penalties (article 8) establishing a national inventory of cultural objects, as appropriate for each country (article 5). The Antiquities Amendment Bill proposes an export control system based on categories of important objects. These may constitute a national inventory for the purposes of the convention. Australia and Canada have established export control systems based on such categories. This interpretation of a national inventory has not been challenged by any other State. Consultation The proposal to consider participation in the conventions formed part of the targeted consultation on the review of the Antiquities Act from May to July Some 170 culture and heritage sector organisations and individuals, including 40 iwi authorities, were consulted. Of the 51 submissions received, most supported the intention to accede to the convention and none opposed it. Twenty sector experts workshops provided specialist advice on all aspects of the review and also supported accession. The following departments were consulted on the proposal the New Zealand Customs Service, Ministry of Foreign Affairs and Trade, Ministry of Pacific Island Affairs, Treasury, Department of Conservation, National Library, Archives New Zealand, Ministry of Maori Development Te Puni Kokiri, Ministry of Justice, Ministry of Economic Development, Department of the Prime Minister and Cabinet, and the Office of Treaty Settlements. Withdrawal or denunciation Article 23 allows a State Party to denounce the convention by notifying in writing the Director-General of the United Nations Educational, Scientific and Cultural Organisation. The denunciation would take effect 12 months after the receipt of the instrument of denunciation. 14

15 Annex one Several important cultural objects have been removed from New Zealand in contravention of export regulations. The following are three of the highest profile examples: The Motunui Pataka Panels Attorney-General of New Zealand v Ortiz [1984] 1 AC 1 (HL) The Crown appeared in the English Courts in an attempt to recover a Motunui pataka panel, which had been dug-up from a swamp in Taranaki, sold to a dealer, exported from New Zealand in breach of the predecessor legislation to the Antiquities Act 1975, purchased by the defendant, and consigned for auction at Sotheby s, London. The claim to recover failed, in the House of Lords, on the relatively narrow ground that; the then applicable legislation did not automatically vest title to illegally exported artefacts in the Crown. This has now been corrected in section 10 of the Antiquities Act The Court of Appeal (in a passage on which the House of Lords did not need to rule), however, also considered that the claim should fail on the ground that it would involve the enforcement of a foreign penal or public law (see per Lord Denning MR at page 24 and per Ackner LJ at page 34). The Motunui pataka panels remain in the ownership of the purchaser. They have been described as representing the single most exciting unit of the now-extinct Taranaki carving style and a true masterpiece of Maori art. The Cook Instruction Department of Internal Affairs v the Poverty Bay Club Inc [1989] DCR 481 In 1988 the Poverty Bay Club removed from New Zealand a 1776 letter written by Captain James Cook to Captain Charles Clerke, and sent it to Sotheby s, London, for auction. The club was convicted of removing an antiquity from New Zealand without reasonable excuse and without a certificate of permission. The letter was acquired by the City of London for the purpose of returning it to New Zealand as a sesquicentennial gift. New Zealand had made a decision not to bid for it at auction. Its return could not have been secured by existing legislation. The letter is now in the Archives New Zealand collection. The Fowler Traction Engine The New Zealand Customs Service v (name suppressed) (Unreported, District Court, Christchurch, CRN 27130, 17 July 2003) A 1996 application to export a unique example of an 1884 Fowler traction engine was declined under the Antiquities Act. In 2002 the engine was found to be for sale in the United Kingdom. The exporter was convicted under section 203(4) of the Customs and Excise Act 1996 of knowingly making an erroneous customs entry and fined $900 plus $175 solicitor fees. The engine was passed in at auction in the United Kingdom for UK 22,

16 Annex two State Parties to the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 States Date of deposit Type of deposit 1 Ecuador 1971 Acceptance 2 Bulgaria 1971 Ratification 3 Nigeria 1972 Ratification 4 Central African Republic 1972 Ratification 5 Cameroon 1972 Ratification 6 Kuwait 1972 Acceptance 7 Cambodia 1972 Ratification 8 Mexico 1972 Acceptance 9 Niger 1972 Ratification 10 Libyan Arab Jamahiriya 1973 Ratification 11 Argentina 1973 Ratification 12 Iraq 1973 Acceptance 13 Brazil 1973 Ratification 14 Dominican Republic 1973 Ratification 15 Egypt 1973 Acceptance 16 Panama 1973 Acceptance 16

17 17 Poland 1974 Ratification 18 Jordan 1974 Ratification 19 Algeria 1974 Ratification 20 Democratic Republic of the Congo 1974 Ratification 21 Iran (Islamic Republic of) 1975 Acceptance 22 Syrian Arab Republic 1975 Acceptance 23 Tunisia 1975 Acceptance 24 Nepal 1976 Ratification 25 Saudi Arabia 1976 Acceptance 26 Bolivia 1976 Ratification 27 India 1977 Ratification 28 Nicaragua 1977 Ratification 29 Qatar 1977 Acceptance 30 Mauritania 1977 Ratification 31 United Republic of Tanzania 1977 Ratification 32 Uruguay 1977 Ratification 33 El Salvador 1978 Ratification 34 Mauritius 1978 Acceptance 35 Canada 1978 Acceptance 36 Oman 1978 Acceptance 37 Italy 1978 Ratification 38 Hungary 1978 Ratification 17

18 39 Guinea 1979 Ratification 40 Honduras 1979 Ratification 41 Cyprus 1979 Ratification 42 Peru 1979 Acceptance 43 Cuba 1980 Ratification 44 Sri Lanka 1981 Acceptance 45 Turkey 1981 Ratification 46 Pakistan 1981 Ratification 47 Greece 1981 Ratification 48 Republic of Korea 1983 Acceptance 49 Democratic People's Republic of Korea 1983 Ratification 50 United States of America 1983 Acceptance 51 Senegal 1984 Ratification 52 Guatemala 1985 Ratification 53 Zambia 1985 Ratification 54 Portugal 1985 Ratification 55 Spain 1986 Ratification 56 Mali 1987 Ratification 57 Burkina Faso 1987 Ratification 58 Bangladesh 1987 Ratification 59 Russian Federation 1988 Ratification 60 Ukraine 1988 Ratification 18

19 61 Belarus 1988 Ratification 62 Colombia 1988 Acceptance 63 Madagascar 1989 Ratification 64 Australia 1989 Acceptance 65 China 1989 Acceptance 66 Belize 1990 Ratification 67 Côte d'ivoire 1990 Ratification 68 Mongolia 1991 Acceptance 69 Angola 1991 Ratification 70 Croatia 1992 Notification of succession 71 Lebanon 1992 Ratification 72 Tajikistan 1992 Ratification 73 Grenada 1992 Acceptance 74 Georgia Slovenia Czech Republic Slovakia Bosnia and Herzegovina Armenia 1993 Notification of succession Notification of succession Notification of succession Notification of succession Notification of succession Notification of succession 19

20 80 Romania 1993 Acceptance 81 Kyrgyzstan 1995 Acceptance 82 Estonia 1995 Ratification 83 Costa Rica 1996 Ratification 84 Uzbekistan 1996 Ratification 85 France 1997 Ratification 86 The former Yugoslav Republic of Macedonia 1997 Notification of succession 87 Bahamas 1997 Ratification 88 Lithuania 1998 Ratification 89 Finland 1999 Ratification 90 Azerbaijan 1999 Ratification 91 Serbia and Montenegro 2001 Notification of succession 92 Rwanda 2001 Ratification 93 Barbados 2002 Acceptance 94 Albania 2002 Acceptance 95 United Kingdom of Great Britain and Northern Ireland 2002 Acceptance 96 Japan 2002 Acceptance 97 Bhutan 2002 Ratification 98 Sweden 2003 Ratification 99 Morocco 2003 Ratification 100 Denmark 2003 Ratification 20

21 101 Gabon 2003 Acceptance 102 Switzerland 2003 Acceptance 103 South Africa 2003 Acceptance 21

22 Appendix C National interest analysis Organisation for the Unification of International Law Convention on Stolen or Illegally Exported Cultural Objects 1995 Date of proposed binding treaty action It is proposed that New Zealand lodge an instrument of accession to the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 1995, after consideration of the convention by Parliament in accordance with Standing Orders, and the passage of amendments to the Antiquities Act 1975 necessary to implement the convention. The convention would enter into force with respect to New Zealand 6 months after the deposit of New Zealand s instrument of accession. It is proposed that New Zealand consider accession to the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 at the same time as accession to the UNIDROIT Convention. The UNIDROIT Convention was drawn up at UNESCO s request to address the shortcomings in the protection offered by the UNESCO Convention. The advantages of considering accession to the UNIDROIT Convention in tandem with the UNESCO Convention are noted below. A national interest analysis has also been prepared for the UNESCO Convention and should be read as a complement to this national internal analysis. Reasons for New Zealand to become party to the treaty Background In recent decades, unprecedented growth in art markets and in the value of all forms of cultural property has substantially increased the international traffic of objects and associated pillage of archaeological sites, historic complexes and religious monuments, and theft from public and private sources. 10 The annual value of this global industry is now estimated at between US$4.5 billion and US$10 billion per annum, compared with about US$1 billion 10-years ago. 11 The trade ranks alongside drugs, money laundering, and illegal arms trading as one of the largest international criminal industries. Only 5 to 10 percent of stolen objects are ever recovered United Kingdom Museums Association (2000), Report of the United Kingdom Ministerial Advisory Panel on Illicit Trade December 2000, INTERPOL website. 11 INTERPOL, French insurance group, Argos. 12 INTERPOL, No to Illicit Traffic in Cultural Property, cited by United Nations Educational, Scientific and Cultural Organisation and Illicit Antiquities Research Centre, Culture without Contest Newsletter, Issue 1, Autumn

23 The unregulated trade provides an incentive for the pillage of archaeological sites, historic complexes and religious monuments, and the theft of important objects from public and private sources. Cultural objects are the only category of valuable property traded internationally for which documents of title are not required. Land, shares, financial transactions, shipping, and other commodities all require such records. The domestic heritage legislation of many States, including New Zealand s Antiquities Act 1975, has not successfully limited this cross-border traffic, or enabled States or individuals to recover stolen or illegally exported objects. There is a need for international cooperation to address these problems. The Antiquities Act 1975 establishes a system of domestic control of the export of cultural heritage objects, but does not provide New Zealand with a means by which to recover illegally exported objects. The traffic of cultural objects in New Zealand New Zealand cultural objects attract international interest and demand, and are potentially vulnerable to illegal export. For example, taonga Maori attract increasingly high prices on international ethnography and art markets. International markets value New Zealand geological and biological specimens because they are unique to this country and are a finite scientific resource. Heritage objects such as early New Zealand paintings, traction engines, classic yachts, and folk art, also attract international demand. Three prosecutions have been made under the Antiquities Act and the Customs and Excise Act 1996 relating to illegal exports of cultural objects. Twenty-five objects have been refused export permission since 1993, and agreement has been reached for the return of three objects exported without permission. 13 It is believed that a number of other important objects have left New Zealand in contravention of export regulations, although firm evidence of this is difficult to obtain. While it is not likely that New Zealand is a major destination for illegally exported objects it is generally accepted that such objects may have been imported in the past and now form part of private or New Zealand public collections, and that this may occur in the future. Further, New Zealand is a likely transit State for objects illegally obtained or exported from their countries of origin, particularly Pacific States, and forwarded to major markets such as Singapore and Hong Kong. It is also suspected that objects have entered New Zealand under false identification so as to disguise their heritage value or to hide the circumstances of their acquisition or export. New Zealand may then be identified as the country of origin on the import certification of destination states This disguises the true country of origin where that country is known to be vulnerable to the illicit trade. No Pacific States are members of the UNIDROIT Convention or the UNESCO Convention. 13 For example, the prosecution of a Japanese film crew exporting illegally Moa bones and Moa egg shells, and the return of a Maori teko teko, and a canoe bailer from Australia. 14 For example, Museum of New Zealand Te Papa Tongarewa possible Indonesian temple statuary being described as a garden sculpture. 23

24 Recovery of stolen and illegally exported cultural property The difficulty of recovering cultural objects once they have been stolen and/or illicitly exported is the central problem in addressing the illicit trade in cultural objects. While items may currently be recovered through diplomatic channels or bilateral agreements between States, individuals seeking recovery of a cultural object must do so through the Courts of the State in which the object is located. There are a number of legal and practical difficulties that frustrate efforts to recover objects through either means. These are outlined as follows: While the export of a cultural object may have been illegal under the laws of the State of origin, those particular laws are very unlikely to be enforceable in the State that received the object. Any action for recovery of the object must be made under the laws of the receiving State, which may be problematic if the import of that object was not illegal under the receiving State s laws. New Zealand has had direct experience of this in the case of Attorney-General of New Zealand v Ortiz [1984]. The English Courts considered the Crown s claim for the recovery of a set of Motunui pataka panels illegally exported from New Zealand. The Court of Appeal stated that the New Zealand Government s claim for the recovery of the panels from the United Kingdom should fail on the ground that it would involve the enforcement of a foreign law. (The Court of Appeal, and ultimately the House of Lords, however, decided the case on the basis that the then applicable legislation did not automatically vest title to illegally exported artifacts in the Crown see Annex One.) The domestic laws of some States (particularly in continental Europe, but not in New Zealand) protect the title of a good faith (bona fide) purchaser of goods, thus extinguishing a claim for return of the illegally exported or stolen cultural object. Traffickers in stolen objects have exploited these laws by selling stolen objects in countries where good faith purchasers are protected. It is difficult to reach bilateral or multilateral agreements or arrangements with other States for the return of a cultural object. It is expensive and inconvenient to litigate in a foreign country for the return of an object located in that State. It is often important that a cultural object, which has been illegally exported or stolen, is returned to the State-of-origin rather than its loss compensated financially. There may be sensitive political and legal circumstances surrounding the acquisition of objects that preclude action for recovery, especially those items acquired in the distant past or during periods of war or occupation. Proving the origin of an object can be difficult given the ease with which an object s origin can be hidden or falsified to acquire the appearance of legitimacy. UNIDROIT Convention The development of the UNIDROIT Convention, which was concluded in 1995, reflects the ongoing worldwide concern at the unregulated trade and theft of cultural heritage objects. It aims to strengthen the protection of such objects by addressing the deficiencies in existing mechanisms, in particular, the UNESCO Convention, to which New Zealand is 24

25 also considering accession. There are currently 23 State Parties to the UNIDROIT Convention, including Spain and Italy. The UNIDROIT Convention addresses the key problems facing the illicit trade by setting up two separate regimes addressing the return of stolen objects and the return of illegally exported cultural property. In the case of stolen objects, the UNIDROIT Convention provides that they shall be returned to the claimant (which may be a State or individual) regardless of whether the possessor is a good faith purchaser. Any person from whom a cultural object has been stolen may sue in the courts of the country where the object is located for the return of that object. Compensation may be paid to the possessor who is forced to relinquish the object. In the case of illegally exported objects, the UNIDROIT Convention provides that a State may request the return of an item that it considers to be of significant cultural importance through the Courts or authorities of another State Party. Advantages and disadvantages to New Zealand of the treaty entering into force The advantages to New Zealand of accession to the UNIDROIT Convention include: The UNIDROIT Convention provides that possession of the cultural object by a good faith purchaser would not extinguish a claim for recovery of a stolen cultural object. This is consistent with New Zealand domestic law. It would benefit New Zealand by allowing the recovery of stolen or illegally exported objects overseas where this would not otherwise be available in countries whose law favours good faith purchasers. The UNIDROIT Convention harmonises the domestic laws of State Parties in respect of the recovery of cultural objects, making it easier for New Zealanders to seek the return of stolen or illegally exported cultural objects in foreign courts. Improvements in private law rights for the recovery of stolen cultural objects means that individuals will not have to rely on the New Zealand Government to seek the return of their objects on their behalf. This has two benefits it provides a choice of action for private citizens, and it lessens the burden on the New Zealand Government. The rights contained in the UNIDROIT Convention are additional to existing mechanisms for the return of cultural objects, such as State-to-State channels under the UNESCO Convention, or negotiating separate bilateral arrangements or agreements regarding specific objects (New Zealand does not participate in any such arrangements). If the UNIDROIT Convention mechanisms are not appropriate in a particular case, State Parties and individuals remain free to use other means to seek return of the object at issue. The UNIDROIT Convention does not require objects to be registered or designated as cultural property by the State. Accordingly, objects of which the State had no prior knowledge, such as those illegally removed from archaeological sites, or stolen from private collections, can be covered by the convention. 25