22 November Contents

Transcription

1 22 November Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property Contents Compendium of written inputs submitted by Members and Observer States for the consideration of the Informal Working Group of the Subsidiary Committee of the 1970 Convention. 1 Comments by Austria... 2 Comments by Bulgaria... 4 Comments by Canada... 6 Comments by China Comments by Ecuador Comments by Germany Comments by Greece Comments by Guatemala Comments by Italy Comments by Japan Comments by Madagascar Comments by Mexico Comments by the Netherlands Comments by Nigeria Comments by Pakistan Comments by Sweden Comments by Switzerland Comments by Turkey Comments by the United States of America This compendium has been prepared by the Coordinator of the Informal Working Group. The written inputs were submitted to the Coordinator in accordance to decision 1.SC 4 of the Subsidiary Commitee of the Meeting of States Parties to the 1970 Convention (3 July 2013). These inputs are repoduced in the form in which they were received. 1

2 Comments by Austria The Austrian Federal Ministry for Education, the Arts and Culture highly appreciates the efforts undertaken by the Subsidiary Committee, its Chair and the UNESCO-Secretariat in providing the draft for operational guidelines. Austria welcomes all measures which aim to prohibit and prevent the illicit import, export and transfer of ownership of cultural property and supports all attempts to facilitate a better cooperation between the UNESCO-member states, UNESCO and other key actors and stake holders. Austria likes to take advantage of the possibility to comment on the present draft, which is a valuable step forward. However, as the given timeframe is rather narrow, the following comments are not exhaustive, but Austria is looking forward to the results of the informal working group and further discussions. I. Introduction (para 1 44): The main purpose of the guidelines will be to provide a concise and practical tool to facilitate the cooperation between UNESCO-Member States, the Secretariat and the Committee and to outline the future work of the Committee. Although it is helpful to repeat elements of other documents and to explain the (legal) basis of the Guidelines, some paragraph might need a shorter or a more concise language (e.g. para 11 16, 26 38). In para we suggest to underline the important role of the Committee: e.g. in para 24 by the wording: The Secretariat s main task are, in close liaison with the Committee: e.g in para 25 by the wording: The Secretariat may, on its own initiative or on the initiative of the Committee: In para 39 suggestions on ways of cooperation and exchange between the Committee and the committees of the conventions mentioned there, might enrich the provision. III. Assistance in the Implementation of Prevention: The chapter gives a description of the status quo. A shorter, but clearer language, e.g. about the Secretariat s and the Committee s role in the mentioned initiatives and about the measures recommended to the Member States might cause a more future oriented approach. IV. Measures concerning Return or Recovery: The chapter combines descriptions of international law (e.g. para 91), references to the UNIDROIT-Convention (e.g. para 98ff), remarks on legal diversities (e.g. para 96, 97) and recommendations on special cases (e.g. para 93, irreplaceable 2

3 items ). As this is a crucial chapter, it might be helpful to give more emphasis to its paragraphs and to restructure it. However, the language of para 98 is too far reaching as neither article 4 of the UNIDROIT-Convention nor other relevant conventions require from a purchaser of cultural goods "to have genuinely researched the title. We propose to delete the phrase and to stay with the appropriate reference to due diligence. V. International Cooperation: In regard to cultural properties in occupied territories more emphasis might be given to the Hague Convention of 1954, its Frist and Second Protocols and to the efforts undertaken by the Committee established by the Second Protocol. VIII. The 1970 Convention Emblem A provision that states, to whom the use of the emblem is recommended and for what purpose, seems to be missing. 3

4 Comments by Bulgaria It is generally a very well prepared document that takes into consideration the situation at present and embodies the philosophy behind the setting of the Committee. It could, however, be improved in several ways. 1.International partners. Key moment to the effort of the international community to combat illicit trafficking is the creation of a large network of partners that would support the states in their mission. Even if it already has an impressive number of third party partners (non-state parties)(pages 26-38), we could greatly benefit if several others are added to the list. The ones that I strongly recommend are 1.1. ICOMOS - the international committee for monuments, even if not directly involved with movable artifacts, should be engaged by us because a very common case of illicit activity leading to traffic is the dismembering of monuments and the subsequent illicit trafficking of the removed pieces (e.g. wall paintings from Ortodox churches in Cyprus). Also, the ICOMOS is deeply involved with archaeological areas and sites thus it shares similar preservation objectives as the ones of the 1970 convention. 1.2.Art loss register. From my experience one of the crucial components to success in fighting illicit trafficking is the cooperation with the legal market actors. Here we need to attract the well established and respectable organization dealing with legal trade - the Art loss register. This would enable a number of options for the Committee, including the recognition of illicit excavaton as theft by the legal market operators and extending the register. 1.3.Europol - as a regional police cooperation platform Europol could be helpful in the implementation of the mission of the committee. Europol has been involved with combating illicit trafficking within EU and has useful experience, informational channels and staff. Also, bringing EUROPOL on our list means closer cooperation with the EU customs mechanisms, which is definitely useful considering the fact that a major share of all illicit trafficking passes throw the EU. 2.Conventions (section I.H, page 13) It is highly recommendable to include several other Conventions, namely 2.1. The European Convention on the Protection of the Archaeological Heritage (Revised) - a major instrument by the Council of Europe that is build on similar principles as the 1970 Convention and has a number of good definitions and recommendations in it. Also, the Council of Europe is a viable partner as an INGO. Another argument here would be the fact that it is ratified by many countries and the geographical scope of it is overlapping with areas of major illicit trafficking. 2.2.The Palermo convention (United Nations Convention against Transnational Organized Crime ). It is crucial that this convention is listed in the Draft operational guidelines. It is a 4

5 very powerful tool that specifically mentions illicit trafficking of antiquities and the related money laundring. 3.In section III.I - Sales on the internet - there should be a new paragraph declaring that state parties (national authorities) should establish relations with organizations like the Art loss register and should make effort to create, separately or together, mechanisms for constant supervision of Internet trade that are also useful for third parties (e.g. useful for legal traders). It should be mentioned that Internet auctioning should be supervised with priority by the national authorities and partner parties. 4.In section IV.A, 87, it is described that "request" is being made through diplomatic channels. However aside from the 1970 convention mechanism there could be another approach to such claims - through International legal assistance in the course of criminal law proceedings. It should be explicitly mentioned in the text that the described request/s do not overrule or bypass any preceding of subsequent procedures for international legal assistance (international legal cooperation tools in the sphere of penalty cooperation). 5.In section IV.B a new article should be added related to archaeological items that could not have been included in lists/registries prior to the case of illicit trafficking due to the fact that they were illegally discovered and transferred. In such situation and when a claim is supported by solid evidence state parties should be enabled to include such items in their lists or declare such items as "national treasure" or give them other appropriate status while the items are still "in absentia" (missing, or being held in custody by the authorities of other state parties). 5

6 Comments by Canada The Government of Canada has examined Document C70/13/1.SC/4 and the draft Operational Guidelines for the implementation of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property ( the 1970 Convention ) prepared by the UNESCO Secretariat and provided to the Subsidiary Committee to the Meeting of States Parties of the Convention. Canada has also reviewed the report prepared by Professor Lyndel Prott, which was used to inform the Secretariat s work. We will follow with interest the work of the Subsidiary Committee to further refine the draft, and look forward to the version of the document that will ultimately be provided to the Meeting of States Parties for its consideration and possible adoption. In the meantime, Canada appreciates the invitation by the Subsidiary Committee to provide written comments on the current version of the draft. We encourage the Subsidiary Committee to take input provided by States Parties into consideration in order that the results of its work may to be adopted by the Meeting of States Parties with minimal or no revision. 1. General Observations While Canada offers comments later herein on specific parts of the present draft, there are a number of general observations we wish to make. Canada applauds the Secretariat for its efforts in producing a draft. Overall, however, the document appears to stray from its purpose of being practical Operational Guidelines to assist States Parties to interpret and implement the Articles of the Convention, and instead approaches being a general primer on the fight against illicit traffic. It also appears that the draft has borrowed too directly from Operational Guidelines attached to other UNESCO Conventions, notably the 1972 and 1954 Conventions, and has not taken into consideration some very basic differences between those instruments and the 1970 Convention. In order to have the Operational Guidelines for the 1970 Convention clearly reflect their purpose, and clearly reflect (only) the Articles of that Convention, Canada recommends the following general revisions: The sections describing various international organizations and their role in the fight against illicit traffic are informative and potentially useful for states, but unlike the 1972 Convention, the 1970 Convention does not ascribe a formal role to international organizations in the implementation of its provisions. Accordingly, Canada recommends that this chapter (I.G.) of the draft be removed and become an Annex to the Operational Guidelines, not part of the Guidelines themselves. 6

7 Unlike the 1954 Convention, which established a logo for specific purposes related to the protection provisions of that instrument, the logo that has been developed for the 1970 Convention has not been formally adopted by States Parties and plays no role in the Articles of the Convention. As such, the logo has a solely administrative function for the Secretariat, and has no place in Operational Guidelines to assist States Parties in implementing the Articles of the Convention. Canada recommends that the chapter (VIII.) of the draft referring to the logo that has been developed by the Secretariat should be omitted from the document. While complementary to the 1970 Convention, the 1995 UNIDROIT Convention is a separate instrument, and great care must be taken in referring to it, or importing its provisions into Operational Guidelines for the implementation of the Articles of the 1970 Convention. Specific comments on this and on references to other instruments are included below. The current draft rightly reflects current practice among States Parties. However, states appear to have reached consensus that the status quo for implementation of the 1970 Convention is inadequate. As a result, Canada considers that the draft Operational Guidelines should also be aspirational and contain options for States Parties to consider in implementing certain Articles of the Convention even though the options in question may not yet reflect existing common practice. Canada concludes its submission by offering suggestions for such aspirational options, including recommendations from Professor Prott s study which were not incorporated in the draft prepared by the Secretariat. Canada will largely refrain from making non-substantive grammatical corrections or formatting comments on the draft. There are, however, aspects of the structure of the draft that Canada finds confusing, and may lead to obstacles in their optimal use in implementing specific Articles of the Convention. An alternative structure for the Operational Guidelines is offered by Canada for consideration as an Annex to this submission and relates more closely to specific Articles of the Convention. 2. Comments on specific draft Operational Guidelines Guideline 2. This Guideline is extremely important in that it should describe how the Operational Guidelines will eventually have been adopted, how they may be revised and by which body, and the difference between the roles of the Subsidiary Committee and the Meeting of States Parties with respect to the Operational Guidelines. As the Subsidiary Committee exists only as an advisory body which may make recommendations to the Meeting of States Parties, it must be the Meeting of States 7

8 Parties, not the Subsidiary Committee, that formally adopts the Operational Guidelines. Further, the Meeting of States Parties has the authority to take decisions on its own initiative, and is not dependent on advice from the Subsidiary Committee, nor is it required to follow the recommendations of the Subsidiary Committee. As such, then, the current text of this Guideline is inaccurate and is not consistent with the Rules of Procedure of the Meeting of States Parties. Canada recommends the following revised text: The Operational Guidelines are adopted by the Meeting of States Parties. They may be revised by the Meeting of States Parties, either on its own initiative or to reflect the recommendations of the Subsidiary Committee of the Meeting of States Parties to the 1970 Convention (hereafter referred to as the Subsidiary Committee). Guidelines The purpose of the Operational Guidelines is not to provide details of the history of specific meetings and when particular decisions were made. As such, only Guideline 16 should be retained, and Canada recommends the following revised text: Pursuant to a decision taken at the Second Meeting of States Parties, Meetings of States Parties are convened every two years. The Meeting of States Parties has adopted Rules of Procedure, which are attached to these Operational Guidelines as an Annex. Guidelines Guidelines Guideline 46 See general comments above: these Guidelines should be removed and made an Annex to the Operational Guidelines. The purpose of the Operational Guidelines is to assist States Parties in implementing their obligations under the 1970 Convention. While information about complementary instruments may be helpful to states in the fight against illicit traffic overall, such information should not be offered as Guidelines for the implementation of the 1970 Convention. These Guidelines should be removed and made an Annex to the Operational Guidelines. With specific reference to Guideline 44, it is not appropriate for the Operational Guidelines for implementation of one Convention urge States Parties to join another Convention, however complementary. As with Guidelines 12-16, it is not necessary to relate the history of development of the Articles of the Convention. Canada recommends the following revised text: 8

9 Member States have concluded that it is desirable for all States Parties to apply a common definition of cultural property, in order to more effectively facilitate the control of exports and imports. Chapter III.A. (title) It should be recognised that in some States Parties, particularly in the case of federal states, relevant legislation may not exist at the national level, but rather at state or provincial level. Canada recommends that the term national be removed from this title. Guideline 51 Guidelines 54, 56 Guideline 59 The English phrase have to is not appropriate language for a document of this kind. In each instance where it appears in the draft document, when referring to the obligations of States Parties, it should be replaced by are required to. It is unnecessary and inappropriate to trace the history of the laws database and the Model Provisions in Operational Guidelines for implementation of the Convention, which are intended to be a practical tool to assist States Parties to implement their Convention obligations. Canada recommends removal of these Guidelines. This Guideline should recognise that States Parties employ both lists of objects, and lists of categories of objects, for the purpose of implementing obligations to control export. Further, individual states may not exercise export control to prohibit exports altogether, but may instead require permits for certain objects, as advocated by the Convention, and even inalienable objects may be exported on a temporary basis (for exhibition, etc). Canada recommends the following revised text: The creation of inventories and lists is a key step in the protection of movable cultural heritage of each State Party. For the purposes of controlling export, establishing a list of important public and private cultural objects, or categories of types of objects, whose export would constitute an appreciable impoverishment of the national cultural heritage is a step foreseen by the Convention. This may or may not be based on a national inventory of cultural heritage from which selected objects may be listed as prohibited or controlled exports. States Parties have the indefeasible right to classify and declare certain cultural property as inalienable. 9

10 Guideline 60 While Canada supports the creation of institutional inventories, this Guideline risks perpetuating the misconception that only inventoried objects may be the subject of claims for return under the Convention. Article 7.b.i. refers only to museums and other institutions recovering stolen material only if an object is documented as appertaining to the inventory of that institution. Therefore, even in the absence of an inventory, a published exhibition catalogue that includes a photo of, and information about, a particular object and the fact that it is part of an institution s collection, may be sufficient to demonstrate that the object appertains to the inventory of the institution in question. Canada suggests the following revised wording: Museums and similar institutions located on the territory of States Parties are encouraged to have their items inventoried, as this can help facilitate claims for return on the basis of the Convention. Moreover, it is necessary to have detailed descriptions of objects if seeking assistance of INTERPOL (or other partners, i.e. specialized police services), or publicity through an electronic database or other media. Guideline 61 This Guideline contains unnecessary detail about the history of Object ID for an Operational Guidelines document. Canada suggests the following revised text: The Object-ID Standard facilitates rapid transmission of basic information on lost and stolen cultural objects. The Standard records eight key identifying elements which, together with a photograph, make the identification of an object and its tracking much simpler. Guideline 64 This Guideline is too prescriptive in specifying that an export certificate is issued by the national service for the protection of cultural property, and does not take into account that other parts of government, such as customs authorities, may be delegated by the competent authority to perform such responsibilities. Canada recommends the following revised text: The certificate is an official instrument issued by the exporting country certifying that it has authorized the export of the cultural object. This document is essential for effective control, and implies cooperation between the service of cultural property and the customs service. Guideline 69 This Guideline appears to suggest that the Convention specifies that all exports of cultural objects require a certificate, 10

11 which is incorrect. The Convention requires certificates, and sanctions for the lack of a certificate, only with respect to exports of cultural property as defined in Article 1, which must therefore be designated as being important. Further, this Guideline should also not refer to specific consequences such as retention by customs officials, as those process details will vary from state to state. And finally, the 1970 Convention does not require penal or administrative sanctions only for illegal export (Article 6b), but also for the import of cultural property stolen from a public collection or monument (Article 7b), and this is not referred to in the Guideline. Canada recommends the following revised language: States Parties are required to impose penalties or administrative sanctions against the export of cultural property without a required export certificate, and against the import of cultural objects stolen from a public collection or monument in another State Party s territory. Guideline 78 In contrast to the obligations to impose penal or administrative sanctions under Article 8 of the Convention, Article 10a specifies that the requirements to be placed on antique dealers, and any related penal or administrative sanctions, are to be undertaken as appropriate for each country. This should be reflected in the wording of this Guideline. Canada recommends the following revised language for the final sentence of this Guideline: These obligations are to be, as appropriate for each country, subject to penal or administrative sanctions. Guideline 79 It would likely be insufficient to justify import prohibition simply by documenting the fact that an item had at one time been in an institution s collection without its theft also being reported, since institutions may legally deaccession material from time to time. Investigations may also be hampered by the reluctance of some institutions to publicize or report thefts. In order to aid States Parties to implement this obligation, this Guideline should urge institutions to, at the very least, report thefts from their collection to law enforcement agencies. Canada recommends that the following be added at the end of this Guideline: To assist State Parties to effectively implement this obligation, it is important for all thefts of cultural property from an 11

12 institution or monument to be promptly reported to relevant law enforcement agencies. Chapters IV.A, IV.C Canada suggests that the order of these two chapters should be reversed, as it is essential for the reader to first understand the non-retroactivity of the Convention before being provided with further information about return and recovery. Guideline 89 The wording of this Guideline appears to suggest that the only cultural property whose return may be requested under the Convention is that stolen from a public collection or monument, yet Article 13.d also requires States Parties to facilitate recovery of certain objects that have been illegally exported. The objective of this Guideline is the importance of inventories in the recovery of objects stolen from a public collection or monument, and on that basis Canada recommends the following revised wording: A State Party can introduce a request for the recovery and return of cultural property under the Convention for cultural property stolen from a museum or a religious or secular public monument or similar institution in another State Party to the Convention only if that property is documented as appertaining to the inventory of that institution. Guideline 92 The wording of this Guideline refers only to the circumstance of Article 7.b.i and ignores the fact that Article 13.d also discusses return of illegally exported cultural property without specifying that it must have been stolen. The draft wording is also ambiguous: it is unclear whether a State Party may only seek the return after the coming into force of the Convention, or whether the illegal import must take place after the coming into force, in order to allow for a request for return based on Article 7.b.ii the latter is clearly intended. For illegally exported material referred to in Article 13.d, based on the general rule about non-retroactivity referred to in Guideline 91, States Parties should require that the original illegal export take place after the Convention comes into force in both states. And finally, the reference to cases prior to the entry into force of the Convention is both unnecessary and very confusing. Canada recommends the following revised wording: A State Party may seek the recovery and return of cultural property under the provisions of the Convention only if: 12

13 - the cultural property referred to in Article 7.b.i. was illegally imported into another State Party after the entry into force of the Convention in both States concerned, or - the cultural property referred to in Article 13.d was illegally exported, and subsequently imported into another States Party, after the entry into force of the Convention in both States concerned. Guidelines 93, 94 Guideline 99 After explaining the limits of the Convention s application due to non-retroactivity, Canada feels that it is inappropriate for the Operational Guidelines to refer to cases falling outside those limits. The purpose of the text is to assist States Parties to implement the Convention, not to provide guidance for situations where the Convention does not apply. Canada recommends removal of these two Guidelines. To avoid creating the misconception that the approach taken by the 1995 UNIDROIT Convention must also be used by States Parties to the 1970 Convention, this Guideline should specify that State Parties, to better determine what they will consider to be due diligence for the purposes of the 1970 Convention, may consider, but are not bound by, the standards introduced by the UNIDROIT Convention. Canada suggests the following wording be added to the end of this Guideline: In considering how to assess whether to provide just compensation, State Parties to the 1970 Convention may wish to consider, but are not bound by, the standards for due diligence introduced by the UNIDROIT Convention. Guideline 100 States Parties to one Convention should not be bound to apply criteria developed for the implementation of a different Convention. It should further be recognized that the UNIDROIT standard of due diligence is not necessarily the only example of recent best practice. Canada recommends the following revised text: States Parties are encouraged to use the criteria of due diligence in assessing good faith or purchaser innocence. States Parties that seek compensation are encouraged to adopt recent best practice, which could include making decisions on compensation based on the UNIDROIT standard of due diligence. Chapter IV.G, 13

14 Guidelines The Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation (ICPRCP) exists specifically to help resolve disputes falling outside the scope of the 1970 Convention. It is therefore inappropriate to devote a section to the ICPRCP in the Operational Guidelines for implementation of the Convention. As the Operational Guidelines are not intended to be a general treatise on resolving all international cultural property disputes, Canada recommends removal of this heading and these Guidelines. Guideline 106 Guideline 110 Canada recommends that this Guideline be added to the section dealing with the mandate and activities of the Subsidiary Committee. It is inaccurate to suggest that any removal of cultural objects from an occupied territory is prohibited by international law, and certainly the relevant article of the 1970 Convention refers only to export and transfer of ownership under compulsion, and both Rule 41 of the ICRC study that is referenced, and Article 9 of the Second Protocol to the Hague Convention, refer specifically to illicit export and removal, not all removals. The Operational Guidelines should refer only to the relevant Article of the Convention. Canada recommends the following revised wording: Article 11 of the Convention specifies that export and transfer of ownership of cultural property under compulsion arising directly or indirectly from occupation by a foreign power is considered illicit. States Parties must apply that principle when implementing provisions of the Convention that relate to illicit export and transfer of ownership of cultural property. Guideline 115 Guideline 118 Article 16 of the Convention does not make periodic reporting on implementation of the Convention optional. It is therefore not appropriate to suggest otherwise in the Operational Guidelines. Canada recommends replacing the word requested with required. Canada does not consider it appropriate that periodic reports on one Convention belonging to one intergovernmental organization should include information on implementation of other Conventions of other organizations. Canada recommends deleting the phrase but also on the application of other complementary normative instruments such as the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects.. 14

15 Guidelines 120, 121 The current text of these Guidelines strays unnecessarily into the history of the evaluation and monitoring process. Canada recommends that Guideline 120 simply refer to submission of the periodic reports to the General Conference, and suggests the following revised wording of Guideline 121: The Subsidiary Committee has the responsibility of reviewing national reports presented to the General Conference by the States Parties to the Convention, and making relevant recommendations to the Meeting of States Parties concerning strengthening the implementation of the Convention. Guideline 122 The current text of this Guideline does not accurately reflect the content of Article 10 of the Convention. Canada recommends the following revised wording: States Parties must use all appropriate means to restrict the movement of cultural property illegally removed from any State Party through education, information and vigilance. Educational means in particular should be used to help the public appreciate the value of cultural heritage and the threat to it from theft, clandestine excavations and illicit trafficking. Guideline 126 Guideline 129 It is inappropriate, in the absence of a specific reference in the Convention, to single out diplomatic staff, particularly when obligations exist for such individuals under a separate Convention. Canada recommends removal of this Guideline. This Guideline should recognize that the reluctance of some institutions to publicize thefts can make recovery of such objects more difficult for law enforcement agencies. It should also not describe the benefits of mass communication as being restricted only to the possibility of making an object unmarketable. Canada recommends the following revised wording: The national services for the protection of the cultural heritage have the obligation to publicize missing cultural objects in the most effective manner possible. Publicity through mass communication can aid investigation efforts, render an object unmarketable, and can result directly in recovery. Recognizing that that is the case, States Parties should encourage institutions to overcome their reluctance to publicize thefts, and are strongly encouraged to make use of the mass media to publicize lost and stolen cultural objects. 15

16 Guidelines Guidelines as currently drafted are more about support for the functioning of international databases and the ICOM Red Lists than about how States Parties are encouraged to use them in implementing the 1970 Convention. Canada recommends that Guidelines be removed and be replaced by a single Guideline: States Parties are encouraged to support and use databases and other mechanisms that have been established to share information internationally about stolen works of art, including the INTERPOL Stolen Works of Art Database and Project Psyche (Protection System for Cultural Heritage). States Parties are also encouraged to disseminate ICOM Red Lists to all stakeholders involved in the protection of cultural property, (especially police and customs services). Chapter VIII See general comments: it is not appropriate for the Operational Guidelines that are to assist States Parties implement the Convention to contain a section on an emblem that has no formal status, but that the Secretariat has created for its own administrative purposes. Canada recommends that this chapter be deleted in its entirety. 3. Suggestions for additional Operational Guidelines As noted earlier herein, Canada feels that the Operational Guidelines should do more than describe existing practice, and that there were also certain aspects of Professor Prott s paper that are not reflected in the Secretariat s draft, but which are worth considering. To that end, Canada offers the following suggestions for additional Operational Guidelines: (Human remains and indigenous spiritual or sacred material) (Articles 7.b.ii, 13) When returning human remains and associated funerary objects and documentation, States Parties should do so in a cultural appropriate manner, as determined by the indigenous peoples concerned. (Article 5.b) In the development of inventories that include indigenous spiritual or sacred material, States Parties should consider restricting access to certain information or images if considered appropriate to do so by the indigenous peoples concerned, or to encourage communities to develop their own inventories of such material. As a result, States Parties and indigenous communities should work together to develop strategies for publicising information and otherwise assisting law enforcement efforts in the event that such material is stolen. 16

17 (Designation) (Article 1) Designation of cultural property for the purposes of Article 1 may take a range of forms, such as: registers or inventories of specific objects lists of categories of objects assertion of state ownership over undiscovered cultural objects (as defined in the UNESCO/UNIDROIT model provisions) States Parties are encouraged to employ one or more of these methods of designation, and to specify in implementing legislation the means by which designation under Article 1 is done. Registers and inventories, lists and legislation in this regard should be reviewed periodically and updated. (Article 1) States Parties designating categories of objects should make the description of those categories sufficiently clear to allow identification of designated objects by customs officers. (Cooperation among States Parties) (Article 5.a) States Parties should make every effort to translate and share their export control law(s) and other relevant legislation with other States Parties. (Article 14) States Parties should collaborate and share specialized scientific and technical expertise related to the protection of cultural property through such methods as training, internships and publication of research. (Acquisitions) (Article 7.a) States Parties establishing tax incentive regimes to encourage the acquisition of cultural property by public institutions should take appropriate steps to ensure that such measures do not inadvertently facilitate the private collection, and subsequent acquisition by institutions, of material that has been the subject of illicit activity as defined by the provisions of the Convention. (Archaeological remains) (Article 5.d) States Parties are encouraged to establish specific means to protect underwater archaeological remains from looting and illicit traffic, including regulation of salvage and accidental finds. (Articles 2.2, 5.d) States Parties should acknowledge that participation by local communities in unauthorized excavations and looting of sites cannot 17

18 be considered in isolation from the larger socio-economic conditions that those communities find themselves in. In protecting known archaeological sites from unauthorised excavation and pillage, States Parties are encouraged to involve local communities directly in protection efforts, emphasizing to those communities the potential long-term economic benefits of such preservation through such means as cultural tourism over the short-term, limited economic benefits of participating in unauthorised excavation activities. (Emergency measures) (Article 9) States Parties are encouraged to increase cooperation and information sharing among customs and law enforcement agencies, and to adopt additional measures, in response to situations of conflict or natural or man-made disaster that have created conditions conducent to illegal transactions and illicit traffic. (Permits) (Article 6.a) States Parties issuing export permits should maintain searchable records of such permits, in the event that forgeries or unauthorized alterations are identified during import in a foreign state, and the issuing state is called upon to confirm whether the permit is genuine and accurate. (Sanctions) (Article 8) States Parties to the 1970 Convention that are also States Parties to the UN Convention Against Transnational Organized Crime (UNTOC) are encouraged to adopt sanctions that are sufficiently severe to constitute a serious offence under the UNTOC. Annex 1 Suggested Alternative Structure for Operational Guidelines Introduction the purpose of the guidelines and the fact that they both reflect existing practice as well as aspirational goals for new approaches the process for their drafting process for approval by the Meeting of States Parties and for subsequent revision Scope of application non-retroactivity territories for which State is responsible (Articles 12, 22) 18

19 occupied territories (Article 11) freedom to enter into agreements (Article 15) Key actors of the Convention States Parties Meeting of States Parties Subsidiary Committee to the Meeting of States Parties, and UNESCO/Secretariat (Article 17) General provisions definition of cultural property (Article 1) designation overview of links (Article 4) definition of illicit (Article 3) General Measures to protect cultural property (Article 5 chapeau, Articles 5.a-d, 14) Export Control (Articles 6a-b,13.d) Import Control (Article 7.b.i) Return and Compensation (Articles 7.b.ii, 13.b-c) Transfer of Ownership and Control of the Market (Article 5.e, 7.a, 10.a, 13.a) Interstate cooperation (Article 9) Sanctions (Article 8) Public Awareness and Education (Article 5.f-g, 6.c, 10.b) Institutional Matters periodic reports (Article 16) ratification, acceptance and accession (Articles 19-20) entry into force (Article 21, 23) revision (Article 25) 19

20 Comments by China After studying carefully the Draft Operational Guidelines for the implementation of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) (Hereinafter as the Draft), we find that the current version of the Draft has made little, if any, amendments vis-a-vis the version which was submitted to the first meeting of the Subsidiary Committee of the Meeting of States Parties to the 1970 Convention in July, It fails to incorporate the constructive suggestions put forward by the China and other countries. Therefore, we suggest that the Draft should reflect those suggestions that have been endorsed by the majorities of the party members. To more specific, China submit the following two suggestions: First, as to the role of inventories in the recovery of stolen cultural property in IV.B, China suggest that inventories should be interpreted extensively for the purpose of the Convention. Article 7 (b)(i) of the Convention requires States to prohibit import of cultural property if only the following two requirement are satisfied: (1) the cultural property was stolen from a museum or a religious or secular public monument or similar institution in another State Party to this Convention after the entry into force of this Convention for the States concerned, (2) such property is documented as appertaining to the inventory of that institution. The above two requirements make the Convention has a very limited application. Because the cultural property must be on an inventory, Article 7 (b)(i) is not applicable to the property having been clandestinely excavated which of its very nature has not been documented. Given the reform of the Convention is facing enormous difficulties and obstacles, China, along with Mexico, Greece, etc, suggest that the concept of inventories should be interpreted extensively and flexibly in order to overcome the defect of Article 7 (b)(i) to a certain degree. Second, after the implementation of more than 40 years, the 1970 Convention has revealed various defects and weaknesses, hence, China believes that it is necessary to initiate the reform of the Convention. Though the reform is encountering objections at the present stage, China suggests that the reform should not be postponed indefinitely. In this light, China submits that the Draft should include the provisions on the plan of the future reform the Convention. By having a roadmap, it would be possible that the reform of the Convention be started step by step. 20

21 Comments by Ecuador Operational guideline I.A, paragraph 1.- On this operational guideline, the phrase: In such cases, the Secretariat does not have authority to adopt a particular interpretation: it must be settled by the States Parties or referred to a judicial o arbitral tribunal. has to be substituted for the following one: In such cases, the Secretariat will work to bring together the countries to favor the restitution of the cultural goods in dispute. Operational guideline I.B, paragraph 3.- After the phrase The loss, through theft, it is necessary to add the following: clandestine excavation, Operational guideline I.C, paragraph 8.- The phrase if necessary has to be eliminated, and the following phrase should be added at the end of the paragraph: and the Secretariat of the Convention. Operational guideline I.F.- After paragraph 23, a new paragraph should be added with the following wording: In the case in which it is only one of the States which asks for support, the Secretariat will offer its assistance to that State and will send a written request to the other State party to ask for its acquiescence or refusal for the Secretariat to act on good offices for the settlement of the dispute. Operational guideline I.G, paragraph 26.- After the phrase: and are recognized by UNESCO, it should be added: and the Subsidiary Committee of the State Members of the Convention of Additionally, a new paragraph should be added with the following text: The Subsidiary Committee as well as the Secretariat of the Convention are invited to make use of the tools offered by these international partners, as possible, in the implementation of the 1970 Convention in the fight against the illicit traffic of cultural property. After the paragraph 38, a new title should be added containing two paragraphs with the following texts: OTHER PARTNERS AND ADVISORY ORGAN, 39. The Subsidiary Committee as well as the State Parties may make use as necessary of all other local, regional or international instruments not mentioned in the paragraphs above. 40. The Subsidiary Committee may establish an advisory organ to help in the monitoring of the implementation of the Convention of 1970 all around the world. The advisory organ will present information, analysis, and recommendations to the Subsidiary Committee. Operational guidelines II.A, paragraph

22 It can be eliminated as it repeats literally what is stated in article 1 of the Convention of Operational guideline II.B, paragraph 49.- The phrase in article 4 of the Convention should be replaced for the following one: in articles 1 and 4 of the Convention Operational guideline III.C, paragraph 63.- After the phrase: It also requires States Parties to prohibit the exportation of cultural property from their territory unless accompanied by such a certificate, the following phrase should be added:, or the authorization issued by the competent authority. Additionally, the State Parties have to prohibit the entering into their territory of cultural goods that are not accompanied by the export certificate or the authorization issued by the competent authority. After the paragraph 64, the following paragraphs should be added: 65. This obligation implies, necessarily, the export certificate issued by the country of origin, owner of the good, as well as the export certificates issued by all the transit countries. 66. The prohibition of the export of a cultural good without its corresponding export certificate makes illegal the import of that good, as it has not been exported legally from the country affected. Therefore the prohibition of export implies the prohibition of import of the good as well. Operational guideline 4.C, paragraph 92.- The word only should be eliminated, and the following phrase should be added at the end of the paragraph: However, the States will look for alternative ways to enable the restitution of the cultural goods illegaly trafficked, among them, by making use of affected countries national legislations existing before the 1970 Convention and other relevant regional or international instruments. Operational guideline 4.C, paragraph 93.- The word irreplaceable should be eliminated. Operational guideline 4.C, paragraph 94.- The following should be added at the end of the paragraph: For this regard, the Subsidiary Committee will keep on finding new methods and systems to bring the parties to the dialogue in order to make possible the return of cultural property illegally trafficked. Operational Guideline 4.D, paragraph 96.- The text of this paragraph has to be changed as there is the mentioning to good faith in the 1970 Convention. The new paragraph 96 should read as follows: 22

23 Good faith is the documented demonstration, by the part of the possessor or holder, of the legitimate origin of the cultural good under control or heritage good, including as a minimum the present possessor or holder. This definition would not be applicable to the author of the cross-border transport of cultural heritage goods who has infringed national laws or regional and international norms, nor would it be applicable to the person who has received those goods immediately after then. The proof of the legitimate origin will include the concept of due diligence which implies the due care which the possessor or holder should have had to verify that the heritage goods had not been subject of illicit traffic, having to prove that through the examination of the quality of the parties who are part of the acquisition, the price paid, the consultation to all types of records of cultural heritage goods, the consultation to accessible organizations that may have information regarding such goods, and other possible ways or mechanisms there could be. Operational Guideline 4.D, paragraph 99.- It should be eliminated. Operational Guideline 4.D, paragraph It should be eliminated. Operational Guideline 4.E.- The word stolen has to be changed for the expression illicitly acquired Operational Guideline 4.E, paragraph After the phrase Consistent with, the following phrase should be added the international law and Operational Guideline 6.C, paragraph The phrase When it was created in june 2012, the Subsidiary Committee has had, as part of its mandate has to be reworded as follows: According to its creation in june 2012, the Subsidiary Committee has as part of its mandate. At the end of paragraph 121 the following text has to be added: In compliance with this function, the Subsidiary Committee will present recommendations for the State Party at the end of the evaluation process of each Periodical Report. A new paragraph has to be added after paragraph 121 with the following text: The Subsidiary Committee is responsible for the follow up of the recommendations, which may include the request of information to the State Party at any time Operational Guideline 7.D, paragraph After this paragraph a new paragraph has to be added with the following text: At the request of States affected, every time that an auction of cultural goods takes place, the General Director will send a note to the State where the auction is to take place requesting information about the objects to be sold, and the evidence of its legality. Additionally, the General Director will make a public statement 23

24 concerning the sale, as well as pointing out the negative effects of this type of actions for the preservation of the cultural heritage all around the world. 24

25 25

26 Comments by Germany Germany welcomes the establishment of the Subsidiary Committee of the Meeting of States Parties to the 1970 UNESCO Convention in order to strengthen the Convention and to give new impetus for a more effective national implementation of the Convention, including measures to prohibit and prevent the illicit import, export and transfer of cultural property. In order to ensure the broadest possible acceptance of the Operational Guidelines Germany urges that any meeting of the Subsidiary Committee or its subsidiary bodies including informal working groups are open to observers from States Parties that are not elected members of the Subsidiary Committee. This is in line with both Article 14.8 of the Rules of Procedure of the Meeting of States Parties to the 1970 UNESCO Convention (adopted in 2012) and Rule 7 (Observers) of the Rules of Procedure of the Subsidiary Committee of the Meeting of States Parties to the 1970 UNESCO Convention (adopted in 2013) States Parties as well as States not party to the Convention may participate in the sessions of the Subsidiary Committee. The observer status of States Parties, which are not members of the Subsidiary Committee, should therefore be reflected in section I.E (17-20) of the Operational Guidelines in order to underline the nature of the Subsidiary Committee as a transparent body that works in the spirit of cooperation. Comments to the Draft Guidelines in Detail I.A. 1: This paragraph should read: The Operational Guidelines for the implementation of the UNESCO 1970 Convention aim to facilitate the national implementation of the Convention on [ ] by its States Parties. The basis of the Operational Guidelines is the UNESCO 1970 Convention. The Operational Guidelines do not interpret or amend the UNESCO 1970 Convention or any of its provisions.. I.A.3: This paragraph should read: Cultural property is among the [ ]. Reason: The 1970 UNESCO Convention deals with cultural property and should not be confounded with the 1972 UNESCO Convention (Cultural and Natural World Heritage). I.E. (17-20) Proposal for a new paragraph 19 bis: Referring to the introductory remarks, Germany suggests a new paragraph 19 bis that should read: Any meeting of the Subsidiary body or its subsidiary bodies, including informal working groups etc., are open to observers from States Parties that are not elected members of the Committee. 26

27 IV.G. 104: This paragraph should read: In cases where the 1970 UNESCO Convention and no other bilateral or multilateral agreement can be applied [ ]. 27

28 Comments by Greece I. INTRODUCTION I.A The Operational Guidelines 1. The Operational Guidelines for the implementation of the UNESCO 1970 Convention (hereafter referred to as the Operational Guidelines) aim to facilitate the implementation of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (hereafter referred to as the 1970 Convention or the Convention ) by its States Parties and to to establish and maintain measures to combat the illicit trafficking of cultural property. 2. The Operational Guidelines may be revised to reflect the decisions and/or recommendations of the Subsidiary Committee of the Meeting of States Parties to the 1970 Convention (hereafter referred to as the Subsidiary Committee ). I.B The 1970 Convention 3. The cultural heritage is among the priceless and irreplaceable assets, not only of each nation, but of humanity as a whole. The loss, through theft, damage, clandestine excavations and illicit transfer or exportation, of any of these most prized assets constitutes an impoverishment of the heritage of all of the peoples of the world. ΚΑΤΕΡΙΝΑ 12/10/13 20:10 Eliminado:. ΚΑΤΕΡΙΝΑ 12/10/13 20:10 Eliminado: In some areas there are divergences of practice which represent divergences of views among the States Parties. In such cases, the Secretariat does not have authority to adopt a particular interpretation: it must be settled by the States Parties or referred to a judicial or arbitral tribunal. ΚΑΤΕΡΙΝΑ 12/10/13 20:12 Eliminado: or 4. To ensure, as far as possible, the protection of their cultural property against the illicit import, export and transfer of ownership, the Member States of UNESCO adopted the 1970 Convention on 14 November 1970 at the 16th Session of the General Conference of UNESCO. I.C The States Parties to the 1970 Convention 5. States are encouraged to become Parties to the Convention. Model instruments for ratification/acceptance and accession are included as Annex I. The original signed version of the instrument shall be sent to the Director-General of UNESCO. 6. The list of States Parties to the Convention is available at the following website: 7. States Parties recognize that clandestine ecxavations and illicit import, export and transfer of ownership of cultural property are one of the main causes of the impoverishment of the cultural heritage of the countries of origin of such property and that international co-operation constitutes one of the most efficient means of protecting each country s cultural property against these threats. To this end, the ΚΑΤΕΡΙΝΑ 12/10/13 20:14 Eliminado: the ΚΑΤΕΡΙΝΑ 12/10/13 20:14 Eliminado: is 28

29 States Parties undertake to oppose such practices with means at their disposal and particularly by removing their causes, putting a stop to current practices, and by helping to make the necessary reparations. Therefore, States Parties are encouraged to promote and educate in the fundamental principles of the Convention To ensure the effective implementation of the Convention, the States Parties undertake, as appropriate for each country, to set up one or more national services for the protection of cultural property, with sufficient staff and adequate budget. States Parties are encouraged to ensure their national heritage services support adequately all the functions entrusted to them. Since previous experiences have proven their efficacity, States Parties are encouraged to create specialized police units dedicated to the protection of cultural property and the recovery of stolen cultural property. This specialized Police of State Parties is encouraged to work under constant cooperation with the customs authorities, the Coast Guard and the Judicial authorities of the States Parties. State Parties are encouraged to exchange good practice and if possible technical support on all the relevant means and methods used for the prevention of clandestine excavations, illicit import, exporta nad transfer of cultural property. 9. States Parties are encouraged to attend the Meetings of States Parties as well as the sessions of the Subsidiary Committee of the Meeting of States Parties, and any other subsidiary body. I.D The Meeting of States Parties to the 1970 Convention 10. The 1970 Convention does not provide for the establishment of a statutory body(ies). 11. First Meeting of States Parties Pursuant to paragraph 9(b) of the Executive Board s Decision 165 EX/6.2 inviting the Director-General to organize a meeting of States Parties to conventions on which reports are due, and in consideration of document 32C/24 (Implementation of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970): Reports of Member States and other States Parties on Measures they have adopted to Implement the Convention), a Meeting of States Parties to the 1970 Convention took place on 13 October 2003 at UNESCO s Headquarters. 12. At that session, the Meeting of States Parties elected a Chairperson and a Rapporteur, adopted Rules of Procedure, as well as Recommendations with regard to the implementation of the 1970 Convention. 13. Second Meeting of States Parties ΚΑΤΕΡΙΝΑ 12/11/13 18:54 Comentario [1]: Although this paragraph copies article 12 of the Convention its meaning and wording make no sense ΚΑΤΕΡΙΝΑ 13/10/13 00:51 Eliminado: There is also an obligation for States Parties to respect the cultural heritage within the territories for the international relations of which they are responsible and to take all appropriate measures to prohibit and prevent the illicit import, export and transfer of cultural property in such territories (in consultation, if necessary, with the competent authorities of these territories). ΚΑΤΕΡΙΝΑ 13/10/13 00:53 Eliminado: 9 ΚΑΤΕΡΙΝΑ 13/10/13 01:05 Eliminado: ΚΑΤΕΡΙΝΑ 13/10/13 01:41 Eliminado: 10 ΚΑΤΕΡΙΝΑ 13/10/13 01:42 Eliminado: 11 ΚΑΤΕΡΙΝΑ 13/10/13 01:42 Eliminado: 12 ΚΑΤΕΡΙΝΑ 13/10/13 01:42 Eliminado: 13 ΚΑΤΕΡΙΝΑ 13/10/13 01:42 Eliminado: 14 29

30 In accordance with 187 EX/Decision 43 and in consideration of the discussions held at the meeting to celebrate the 40 th anniversary of the 1970 Convention (15-16 March 2011, UNESCO Headquarters), a Second Meeting of States Parties was convened on 20 and 21 June 2012 at UNESCO Headquarters. 14. The purpose of the Second Meeting of States Parties was to examine the impact of the measures taken by States Parties to optimize the implementation of the Convention at the national and regional levels, appraise its efficiency with regard to new trends in trafficking in cultural property, and reflect on possible modalities for ensuring its effective and regular application and follow-up. 15. During this meeting, the States Parties adopted new Rules of Procedure (Resolution 2.MSP 3) (hereafterreferred to as the Rules of Procedure ) and agreed that the Meeting of States Parties would be convened every two years. ΚΑΤΕΡΙΝΑ 13/10/13 01:42 Eliminado: 15 ΚΑΤΕΡΙΝΑ 13/10/13 01:42 Eliminado: 16 I.E The Subsidiary Committee of the Meeting of States Parties to the 1970 Convention 16. The Second Meeting of States Parties also established a Subsidiary Committee to be convened by the Secretariat every year. 17. The Subsidiary Committee is composed of representatives of 18 States Parties: 3 per regional group in order to ensure equitable geographical representation and rotation. 18. The members of the Subsidiary Committee are elected by the Meeting of States Parties for a term of four years. Every two years, the Meeting of States Parties will renew half of the members of the Committee. 19. The functions of the Committee are, in cooperation with States Parties: a) to promote the purposes of the Convention, as set forth in the Convention; b) to review national reports presented to the General Conference by the States Parties to the Convention; c) to exchange best practices, and prepare and submit to the Meeting of States Parties recommendations and guidelines that may contribute to the implementation of the Convention; d) to identify problem areas arising from the implementation of the Convention, including issues relating to the protection and return of cultural property; such problem areas include among others areas of crime arising from the use of new technologies and the internet. e) to initiate and maintain co-ordination with the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its ΚΑΤΕΡΙΝΑ 13/10/13 01:42 Eliminado: 17 ΚΑΤΕΡΙΝΑ 13/10/13 01:42 Eliminado: 18 ΚΑΤΕΡΙΝΑ 13/10/13 01:42 Eliminado: 19 ΚΑΤΕΡΙΝΑ 13/10/13 01:42 Eliminado: 20 30

31 Restitution in case of Illicit Appropriation in relation to capacity building measures combating illicit traffic in cultural property; f) to report to the Meeting of States Parties on the activities it has carried out. I.F The Secretariat to the 1970 Convention and to the Subsidiary Committee 20. The Secretariat of the 1970 Convention is appointed by the Director-General of UNESCO and is provided by the Organization`s Culture Sector. The Secretariat assists and collaborates with the States Parties, the Meeting of States Parties and the Subsidiary Committee to the Meeting of States Parties. The Secretariat works in close co-operation with other Sectors and Field Offices of UNESCO. 21. The States Parties may call on the technical assistance of the Secretariat, particularly with regard to information and training; consultation and expert advice; co-ordination and good offices. The Secretariat may assist the State Parties by creating standard procedures to be followed when informed about clandestine excavations, illicit illicit import, export and transfer of cultural property. These standard procedures may include the immediate publication of the incident and the cultural goods involved on Unesco s website. The Secretariat may also assist the State Parties by creating mechanisms of direct communication with the Art market in order to prevent illicit trafficking of cultural goods(e.g. auction houses, e- commerce). 22. At the request of at least two States Parties which are engaged in a dispute over the implementation of the Convention, the Secretariat may extend its good offices to reach a settlement between them. Such good offices may include technical assistance, negotiations, check of due diligence etc. 23. The Secretariat s main tasks are: a) organizing of the statutory meetings; b) providing assistance to States Parties in the implementation of the 1970 Convention; c) promoting the 1970 Convention through the dissemination of information to States Parties, the specialized public and the general public, through the organization of capacity-building programmes (regional or national); d) co-operating with partner Organizations ; and, e) assisting in the preservation of movable cultural heritage in case of emergency situations caused by natural disaster or conflict. ΚΑΤΕΡΙΝΑ 13/10/13 01:42 Eliminado: 21 ΚΑΤΕΡΙΝΑ 13/10/13 01:42 Eliminado: 22 ΚΑΤΕΡΙΝΑ 13/10/13 01:42 Eliminado: 23 ΚΑΤΕΡΙΝΑ 13/10/13 01:46 Eliminado: The Secretariat may, on its own initiative, a) conduct research and publish studies on matters relevant to the illicit movement of cultural property; b) call on the co-operation of any competent and recognized by State Parties nongovernmental organization as having appropriate skills; and, 31

32 c) make proposals to States Parties for the implementation of the Convention. I.G International partners for the fight against illicit trafficking of cultural property 25. Partners for the fight against illicit trafficking of cultural property may be intergovernmental or non-governmental organizations which have an interest, involvement and appropriate competence and expertise in the protection of cultural objects and are recognized by UNESCO and the State Parties as having specialized appropriate skills. They are in particular invited to participate in expert studies and regional meetings and workshops organized by UNESCO. ΚΑΤΕΡΙΝΑ 13/10/13 01:47 Eliminado: 26 International Criminal Police Organization (ICPO-INTERPOL) 26. Concerning stolen works of art, INTERPOL provides a number of tools that facilitate the global exchange of information on criminal actions involving works of art, the details of the stolen artworks and the individuals involved. In this area, INTERPOL serves as a central repository for this data, providing analysis to identify trends in art thefts such as the proliferation of counterfeit, faked or forged works; or the use of the Internet for selling works of dubious background. Based on INTERPOL S experience the State Parties are encouraged to cooperate with INTERPOL in order to work out a method by which the cultural property deriving from clandestine excavations is secured. 27. Among the most important tools and services available to law enforcement, cultural agencies and the public are: website alerts and media releases, posters of the most wanted works of art, as well as the Stolen Works of Art Database (regarding the database, see paragraphs ). 28. The specific role of INTERPOL in relation to the 1970 Convention is described in the Cooperation Agreement between UNESCO and INTERPOL signed in This Cooperation Agreement contains provisions on mutual consultations, exchange of information, reciprocal representation and technical cooperation. In addition, in 2003, in accordance with Article 4(4) of this Cooperation Agreement, UNESCO and INTERPOL entered into a Special Agreement with regard to the protection of Iraqi cultural property. ΚΑΤΕΡΙΝΑ 13/10/13 01:54 Eliminado: 27 ΚΑΤΕΡΙΝΑ 13/10/13 01:54 Eliminado: 28 ΚΑΤΕΡΙΝΑ 13/10/13 01:54 Eliminado: 9 International Institute for the Unification of Private Law (UNIDROIT) 29. The International Institute for the Unification of Private Law (UNIDROIT) is an independent intergovernmental Organization. Its purpose is to study needs and methods for modernising, harmonising and co-ordinating private law as between States and groups of States and to formulate uniform law instruments, principles and rules to achieve those objectives. 30. The specific role of UNIDROIT in relation to the 1970 Convention includes: working on the private law aspects of the fight against illicit traffic in cultural objects ΚΑΤΕΡΙΝΑ 13/10/13 01:54 Eliminado: 30 ΚΑΤΕΡΙΝΑ 13/10/13 01:54 Eliminado: 1 32

33 (on the basis of an Agreement entered into between UNESCO and UNIDROIT in 1954 containing provisions specifically on mutual consultations, exchange of information, reciprocal representation and technical cooperation), monitoring and promoting the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995) (hereafterreferred to as the UNIDROIT Convention ), participating in expert studies and co-organizing with UNESCO regional meetings or workshops for the fight against illicit trafficking of cultural property. United Nations Office on Drugs and Crime (UNODC) 31. UNODC is mandated to assist Member States in their struggle against drug trafficking, crime and terrorism. In the Millennium Declaration, Member States also resolved to intensify efforts to fight transnational crime in all its dimensions, to redouble the efforts to implement the commitment to counter the world drug problem and to take concerted action against international terrorism. 32. The United Nations Economic and Social Council (ECOSOC), in its resolutions 2010/19 and 2011/42, and the General Assembly, in its resolution 66/180, requested UNODC, within its mandate, in consultation with Member States and in close cooperation, as appropriate, with UNESCO, INTERPOL and other competent international organizations, to include in its work the possibility of developing specific guidelines for crime prevention and criminal justice responses with respect to trafficking in cultural property. 33. The specific role of UNODC in relation to the 1970 Convention includes: working on the criminal aspects of the fight against illicit trafficking of cultural property and strengthening crime prevention and criminal justice responses to protect cultural property. ΚΑΤΕΡΙΝΑ 13/10/13 01:54 Eliminado: 2 ΚΑΤΕΡΙΝΑ 13/10/13 01:55 Eliminado: 3 ΚΑΤΕΡΙΝΑ 13/10/13 01:55 Eliminado: 4 World Customs Organization (WCO) 34. WCO provides leadership in Customs matters at the international level and advises customs administrations worldwide on management practices, tools and techniques to enhance their capacity to implement efficient and effective crossborder controls along with standardized and harmonized procedures to facilitate legitimate trade and travel and to interdict illicit transactions and activities. 35. The specific role of WCO in relation to the 1970 Convention includes: being a partner of UNESCO in the fight against illicit trafficking of cultural property as border control is the front line defence against illicit traffic of arms, drugs, currency but also cultural property. Indeed, alert customs officials play a key role in identifying and holding cultural objects which are falsely declared or identifiable as a result of looting. ΚΑΤΕΡΙΝΑ 13/10/13 01:55 Eliminado: 5 ΚΑΤΕΡΙΝΑ 13/10/13 01:55 Eliminado: 36 International Council of Museums (ICOM) 33

34 36. ICOM is the only international organization representing museums and museum professionals. ICOM assists members of the museum community in their mission to preserve, conserve and share cultural heritage. 37. The specific role of ICOM in relation to the 1970 Convention includes: providing advice to UNESCO on museum matters, training museum staff to protect the cultural objects by offering tools to make inventories of the collections and publishing international guidelines of security, publicizing endangered heritage (particularly by means of the Red Lists, see paragraphs ) or stolen works of art (particularly by means of the One Hundred Missing Objects collection). ΚΑΤΕΡΙΝΑ 13/10/13 01:55 Eliminado: 7 ΚΑΤΕΡΙΝΑ 13/10/13 01:55 Eliminado: 38 I.H Selected conventions relating to the protection of cultural property 38. UNESCO Conventions Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) First Protocol (1954) Second Protocol (1999) Convention concerning the Protection of the World Cultural and Natural Heritage (1972) Convention on the Protection of the Underwater Cultural Heritage (2001) Convention for the Safeguarding of the Intangible Cultural Heritage (2003) 39. Other Conventions UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 1995) ΚΑΤΕΡΙΝΑ 13/10/13 01:59 Eliminado: 9 ΚΑΤΕΡΙΝΑ 12/11/13 18:54 Comentario [2]: Greece has not signed this Convention ΚΑΤΕΡΙΝΑ 13/10/13 01:59 Eliminado: 40 The specific complementary role of the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995) 40. The UNIDROIT Convention underpins the provisions of the 1970 UNESCO Convention, supplementing them by formulating minimal legal rules on the recovery and return of cultural objects. It finds a solution to some of the problems of private law which were interfering with the implementation of the provisions of the 1970 Convention. The two conventions are at once compatible and complementary. 41. The UNIDROIT Convention represents a middle road between diametrically opposed positions: one favouring maximum freedom of trade and the other the protection of national heritage. The aim of the UNIDROIT Convention is twofold: first, it seeks to deal with the technical problems resulting from differences among national rules and to draw upon the progress that has been permitted by the evolution of ideas; second, it is intended to contribute to the fight against the increase of the illicit traffic in cultural objects and to show how the national ΚΑΤΕΡΙΝΑ 13/10/13 01:59 Eliminado: 41 ΚΑΤΕΡΙΝΑ 13/10/13 01:59 Eliminado: 2 34

35 protection of cultural heritage may be adapted to, or accompanied by, enhancing solidarity between States. 42. This UNIDROIT Convention also settles serious difficulties that could not be dealt with in the 1970 Convention. The main principles are the following: - Undiscovered antiquities, thus cultural objects which consistently with national law are of importance for archaeology, prehistory, history, literature, art or science and are located in the soil and underwater should be treated as stolen where the State of origin has claimed ownership in its legislation; and, - A clear test of due diligence is given, which establishes a standard test for good faith - Some special provisions on time limitations for claims are settled. -Illicitly excavated objects are deemed to be stolen objects. 3. The States Parties to the 1970 Convention, convinced of the necessity of protecting the cultural heritage and willing to further develop its protection are encouraged to become Parties to the UNIDROIT Convention. ΚΑΤΕΡΙΝΑ 13/10/13 01:59 Eliminado: 3 ΚΑΤΕΡΙΝΑ 13/10/13 01:59 Eliminado:... [1] II. DEFINITION AND LINKS BETWEEN HERITAGE AND STATE II.A The definition of cultural property 44. Cultural property is defined in Article 1 of the 1970 Convention. Article 1 For the purposes of this Convention, the term cultural property means property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science and which belongs to the following categories: (a) rare collections and specimens of fauna, flora, minerals and anatomy, and objects of paleontological interest; (b) Property relating to history, including the history of science and technology an military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance; (c) products of archaeological excavations (including regular and clandestine) or of archaeological discoveries; (d) elements of artistic or historical monuments or archaeological sites which have been dismembered; (e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals; (f) objects of ethnological interest; (g) property of artistic interest such as: ΚΑΤΕΡΙΝΑ 13/10/13 02:00 Eliminado: 45 (i) pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand); (ii) original works of statuary art and sculpture in any material; 35

36 (iii) original engravings, prints and lithographs; (iv) original artistic assemblages and montages in any material; (h) rare manuscripts and incunabula, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections; (i) postage, revenue and similar stamps, singly or in collections; (j) archives, including sound, photographic and cinematographic archives; (k) articles of furniture more than hundred years old and old musical instruments. 45. In the preliminary report on the draft 1970 Convention made in 1969, the Committee recommended that it was desirable for all States Parties to apply a common definition, so as to facilitate the control of exports and imports of cultural property. This view was accepted by the Member States and the Special Negotiating Committee in The above list of categories is broad, but not exhaustive. Moreover, the States Parties have to specifically designate the cultural property considered as being important (list, categories, etc.). Consequently, the States Parties are encouraged to designate the cultural objects that are protected under their national law and to keep the classification under review. In order that cultural property of all State Parties is secured it is desirable that the Subsidiary Committee works out a common method of recording each cultural object designated as such by the national legislation of each State Party by granting a unique identity number of every object found in archeological sites and displayed or stored in museums. Such number may also be provided for cultural objects claimed by a State Party to be deriving from clandestine excavations. ΚΑΤΕΡΙΝΑ 13/10/13 02:06 Eliminado: 46 ΚΑΤΕΡΙΝΑ 13/10/13 02:06 Eliminado: 7 II.B Links between cultural property and State 47. For a State to be able to claim a cultural object as its own cultural heritage, a number of links have been set out to make evident the relation of the cultural item to the State or its citizens. States Parties are required to recognize those links. 48. The criteria to establish the links between cultural property and a State Party is defined in Article 4 of the 1970 Convention Article 4 The States Parties to this Convention recognize that for the purpose of the Convention property which belongs to the following categories forms part of the cultural heritage of each State: (a) cultural property created by the individual or collective genius of nationals of the State concerned, and cultural property of importance to the State concerned created within the territory of that State by foreign nationals or stateless persons resident within such territory; (b) cultural property found within the national territory; ΚΑΤΕΡΙΝΑ 13/10/13 02:06 Eliminado: 8 ΚΑΤΕΡΙΝΑ 13/10/13 02:11 Eliminado: 49 36

37 (c) cultural property acquired by archaeological, ethnological or natural science missions, with the consent of the competent authorities of the country of origin of such property; (d) cultural property which has been the subject of a freely agreed exchange; (e) cultural property received as a gift or purchased legally with the consent of the competent authorities of the country of origin of such property. 49. In a situation where more than one State Party may have a claim over the same cultural object or may regard a cultural object as part of its cultural heritage, the Convention does not attempt to establish priorities. States Parties are encouraged to cooperate to ensure that appropriate arrangements are established to allow the interested States, where this can be done without damage to the object, to realize their interests in a compatible way. ΚΑΤΕΡΙΝΑ 13/10/13 02:15 Eliminado: 50 III. ASSISTANCE IN THE IMPLEMENTATION OF PREVENTION III.A National legislation on and regulation of the protection of cultural heritage 50. States Parties have to adopt appropriate legislation for the protection of the cultural property. 51. In consideration of the sovereignty of States with regard to the enactment of legislation concerning the protection of cultural property, States Parties to the Convention are encouraged to review their legislation from time to time to ensure that it takes into account best practice. ΚΑΤΕΡΙΝΑ 13/10/13 02:15 Eliminado: 51 ΚΑΤΕΡΙΝΑ 13/10/13 02:15 Eliminado: 52 UNESCO Database of National Cultural Heritage Laws 52. To ensure, as far as possible, the publicity and visibility of the national laws/rules concerning the protection of cultural property, UNESCO has established a Database of National Cultural Heritage Laws, a source of information easily and freely accessible (hereafter referred to as the UNESCO Database ). 53. The development of this innovative tool was approved by the UNESCO General Conference in 2003 and launched in 2005 by the 13 th session of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation (hereafter referred to as the ICPRCP ). 54. States Parties are encouraged to incorporate and update the relevant legislation, as well as export certificates, in the UNESCO Database. ΚΑΤΕΡΙΝΑ 13/10/13 02:16 Eliminado: 53 ΚΑΤΕΡΙΝΑ 13/10/13 02:16 Eliminado: 4 ΚΑΤΕΡΙΝΑ 13/10/13 02:16 Eliminado: 55 Model Provisions on State Ownership of Undiscovered Cultural Objects 37

38 55. Following the UNESCO Recommendation on International Principles Applicable to Archaeological Excavations (1956) and the ECOSOC Resolution 2008/23 on the need for States to assert State ownership of the archaeological subsoil, and as requested by the ICPRCP at its 16 th session in 2010, the UNESCO and UNIDROIT Secretariats convened a group of experts and mandated them to draft a text that would appropriately address the subject. The text was finalized and adopted at the 17 th session in These Model Provisions are intended to assist domestic legislative bodies in the establishment of a legislative framework for heritage protection, to adopt effective legislation for the establishment and recognition of the State s ownership of undiscovered cultural objects with a view to facilitating return in case of unlawful removal. They are followed by guidelines aimed at ensuring better understanding the provisions. 57. States Parties are encouraged to incorporate in their legislation the six principles of State ownership of undiscovered cultural objects in order to ensure that foreign courts will be fully informed of the legislative provisions in foreign national legislation regarding this matter. ΚΑΤΕΡΙΝΑ 13/10/13 02:17 Eliminado: 56 ΚΑΤΕΡΙΝΑ 13/10/13 02:17 Eliminado: 57 ΚΑΤΕΡΙΝΑ 13/10/13 02:17 Eliminado: 58 III.B Inventories and inalienability 58. The creation of inventories and lists is a key step in the protection of movable cultural heritage of each State Party. For the purposes of controlling export, establishing a list of important public and private cultural objects whose export would constitute an appreciable impoverishment of the national cultural heritage is a step foreseen by the Convention (also see above paragraph 47). This may be based on a national inventory of cultural heritage from which selected objects may be listed as prohibited exports. States Parties have the indefeasible right to classify and declare certain cultural property as inalienable, which should therefore not be exported. 59. Museums and similar institutions located on the territory of States Parties are encouraged to have their items inventoried if they are to make claims for return on the basis of the Convention. Moreover, it is necessary to have detailed descriptions of objects if seeking the assistance of INTERPOL (or other partners, i.e. specialized police services), or publicity through an electronic database or other media (but also see above paragraph 26). ΚΑΤΕΡΙΝΑ 13/10/13 02:17 Eliminado: 59 ΚΑΤΕΡΙΝΑ 13/10/13 02:27 Eliminado: ΚΑΤΕΡΙΝΑ 13/10/13 02:17 Eliminado: 60 Object-ID Standard 60. The Object-ID is the result of years of research in collaboration with the museum community, police and customs agencies, the art trade, the insurance industry, and valuers of art and antiques. Launched in 1997, it facilitates rapid transmission of basic information on lost and stolen cultural objects and is promoted by major law enforcement agencies, such as national police units. The ΚΑΤΕΡΙΝΑ 13/10/13 02:17 Eliminado: 61 38

39 Standard records eight key identifying elements which, together with a photograph, make the identification of an object and its tracking much simpler. Yet, the Object- ID Standard cannot be applied in cases of illicitly excavated cultural goods and the Subsidiary Committee in cooperation with the Secretariat and the State Parties are encouraged to work out a method so that cultural property deriving from clandestine excavations can be inventoried. 61. States Parties which do not have extensive inventories and need to generate them quickly in order to make use of the international procedures now available for tracking cultural objects are encouraged to use the Object-ID Standard and the methods proposed by the Subsidiary Committee (see above paragraphs 26, 60). ΚΑΤΕΡΙΝΑ 13/10/13 02:17 Eliminado: 62 III.C Export certificates 62. The Convention requires the States Parties to introduce an appropriate certificate specifying that the export of a cultural heritage item in question is authorized. It also requires States Parties to prohibit the exportation of cultural property from their territory unless accompanied by such a certificate. ΚΑΤΕΡΙΝΑ 13/10/13 02:28 Eliminado: The certificate is an official instrument issued by the competent authority (national service for the protection of cultural property) of the exporting country certifying that it has authorized the export of the cultural object described. This document is essential for effective control, and implies co-operation between the service of cultural property and the customs service. All cultural objects appearing in the Art Market should be supplied by the Export Certificate of the object s country of origin. In case of lack of the certificate the cultural object shall be considered as illegally exported out of its country of origin. 64. States Parties may also introduce special provisions for certificates or licenses for temporary export. Such temporary export permits may be issued for exhibitions and return, for study by specialized research institutions or for another reasons agreed between States Parties. 65. States Parties are encouraged to give particular attention to the issue, form and security of the export certificate and to ensure close liaison between the customs forces, heritage managers and police officers for its control and reliability. ΚΑΤΕΡΙΝΑ 13/10/13 02:28 Eliminado: 4 ΚΑΤΕΡΙΝΑ 13/10/13 02:29 Eliminado: 5 ΚΑΤΕΡΙΝΑ 13/10/13 02:29 Eliminado: 6 Model Export Certificate for Cultural Objects 66. Developed jointly by the UNESCO and the WCO Secretariats, this Model Export Certificate is an operational tool for the fight against illicit trafficking of cultural property. It has been specially adapted to the growing phenomenon of cross-border movements of cultural objects and is useful to the police and customs services, enabling them to combat trafficking in cultural property more effectively. ΚΑΤΕΡΙΝΑ 13/10/13 02:29 Eliminado: 67 39

40 67. States Parties are encouraged to use or adapt the model export certificate and to consider whether a temporary export certificate would suit their protective scheme. ΚΑΤΕΡΙΝΑ 13/10/13 02:29 Eliminado:... [2] III.D Penal and administrative sanctions 68. States Parties are required by the Convention to impose penalties or administrative sanctions on any person who exports a cultural object without an export certificate. In consequence, if proof legal export cannot be produced, such a cultural object may then be retained by the customs officials and returned to the State concerned. ΚΑΤΕΡΙΝΑ 13/10/13 02:29 Eliminado: As the Convention does not specify what sort of penalties are to be applied, States Parties are encouraged to use civil, criminal or administrative penalties, consistent with their national practice, of sufficient severity to deter the practices dealt with in the Convention. ΚΑΤΕΡΙΝΑ 13/10/13 02:29 Eliminado: 70 III.E Archaeological excavations 70. States Parties are encouraged to protect by national legislation and, if necessary, by other specific measures, sites of archaeological interest, including their movable items. Concerning the legislation, the relevant provisions of the part National legislation on and regulation of the protection of cultural heritage (III.A) should be followed. 71. Specific activities should be established to protect the archaeological heritage in accordance with the principles contained in the UNESCO Recommendation on International Principles Applicable to Archaeological Excavations (1956). 72. States are also encouraged to make legislative provision on the use of metal detectors and other scientific methods of ground-penetrating analysis. States are encouraged to forbid unauthorized use of such equipment on archaeological sites. III.F Ethical principles 73. States Parties are encouraged to take action to establish legislation in conformity with the ethical principles set forth in the 1970 Convention and especially to ensure their observance Such legislation may be developed on a national, international, regional or professional level. Anthropologists, archaeologists, auctioneers, conservators, curators, dealers, restorers and all professional staff working with cultural objects are obliged to conform to laws based on ethical principles which refuse service for cultural objects whose provenance appears faulty or dubious. UNESCO International Code of Ethics for Dealers in Cultural Property ΚΑΤΕΡΙΝΑ 13/10/13 02:29 Eliminado: 71 ΚΑΤΕΡΙΝΑ 13/10/13 02:29 Eliminado: 72 ΚΑΤΕΡΙΝΑ 13/10/13 02:29 Eliminado: 73 ΚΑΤΕΡΙΝΑ 13/10/13 02:29 Eliminado: 74 ΚΑΤΕΡΙΝΑ 13/10/13 02:37 Eliminado: rules ΚΑΤΕΡΙΝΑ 13/10/13 02:37 Eliminado: These rules may be either compulsory, as in legislation, or voluntary, such as codes of ethics.... [3] ΚΑΤΕΡΙΝΑ 13/10/13 02:38 Eliminado: In this regard, States Parties and all Member States of UNESCO are encouraged to make use of rules based on ethical principles ΚΑΤΕΡΙΝΑ 13/10/13 02:38 Eliminado: rules ΚΑΤΕΡΙΝΑ 13/10/13 02:39 Eliminado: should ΚΑΤΕΡΙΝΑ 13/10/13 02:39 Eliminado: rules 40

41 75. In 1999, the ICPRCP adopted the International Code of Ethics for Dealers in Cultural Property. This Code incorporates the principles developed in the 1970 Convention and subsequently in the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995). This Code also takes into account the experience of various national codes, the Code of the Confédération internationale des Négociants d Oeuvres d Art (CINOA) as well as the Code of Professional Ethics of the International Council of Museums (ICOM). ΚΑΤΕΡΙΝΑ 13/10/13 02:29 Eliminado: 76 III.G Control of trade and Registers 76. States Parties are encouraged to ensure that equally constraining rules, whether legislative or ethical codes, include the same provisions for dealers as those being observed by museums or other national institutions, particularly those concerning the provenance of the cultural property. 77. Regarding the trade in cultural property, and the trade of antiquities in particular, States Parties undertake to respect their obligations under the Convention to supervise the activities of dealers and to use appropriate means to control illicit transactions, such as the maintaining of registers recording the origin of each item of cultural property, names and addresses of the supplier, description and price of each item sold and to inform the purchaser of the cultural property of the export prohibition to which such property may be subject. These obligations are subject penal or administrative sanctions. ΚΑΤΕΡΙΝΑ 13/10/13 02:29 Eliminado: 77 ΚΑΤΕΡΙΝΑ 13/10/13 02:29 Eliminado: 78 III.H Import 78. States Parties are required to prohibit the import of cultural property stolen from a museum or a religious/secular public monument or similar institution States Parties are invited to establish appropriate procedures for their customs authorities to properly supervise the declarations and seizures, to collaborate with the customs authorities of other States Parties and to ensure that the regulations in this area take into account the best practice for the protection of cultural heritage items (see also above paragraph 8). ΚΑΤΕΡΙΝΑ 13/10/13 02:42 Eliminado: 79 ΚΑΤΕΡΙΝΑ 13/10/13 02:40 Eliminado: provided that such property is documented as appertaining to the inventory of that institution ΚΑΤΕΡΙΝΑ 13/10/13 02:42 Eliminado: 80 III.I Sales on Internet 80. At the time of the drafting of the 1970 Convention, Internet was not a major channel for sales. Consequently, the 1970 Convention does not foresee rules in this regard. However, some States Parties have expressed concern about the increasing use of the Internet to sell or traffic stolen or illegally exported cultural objects. The exponential growth of this channel is causing serious concern to many countries. ΚΑΤΕΡΙΝΑ 13/10/13 02:42 Eliminado: 81 41

42 81. Some States Parties are not sufficiently organized to supervise and quickly follow-up offers on the Internet that appear to be advertising newly imported, excavated cultural property. Most national cultural administrations do not have sufficient resources to continually check offers on the Internet. The Secretariat may offer its good services to assist national authorities to find wasy to follow up offers on the Internet. Alos, thesubsidiary Committee should set up a working group which will concentrate all websites throughout the world where offers of cultural goods are made and create an alert method of notifying the relevant State Parties on a daily basis. National authorities are also encouraged to promote the supervision by the public (specialists or other individuals interested in particular cultures) to be vigilant concerning Internet offers and to inform the administration when it appears that an object of national heritage not previously known is being offered on a website or when an object of threatened foreign heritage is offered with a local address. Such notifications should be examined immediately by the cultural administration; if necessary, using experts (from universities, museums, libraries and other institutions) to verify the nature and importance of the item(s) being offered. When the evidence justifies it, prosecutions should be undertaken by the national authorities and by Unesco. ΚΑΤΕΡΙΝΑ 13/10/13 02:42 Eliminado: 2 ΚΑΤΕΡΙΝΑ 13/10/13 02:51 Eliminado: therefore Basic Actions concerning Cultural Objects being offered for Sale over the Internet 82. Following a recommendation adopted by the third annual meeting of the INTERPOL Expert Group on Stolen Cultural Property (7-8 March 2006, INTERPOL General Secretariat), INTERPOL, UNESCO and ICOM have developed a list of Basic Actions to counter the Increasing Illicit Sale of Cultural Objects through the Internet. 83. While the Basic Actions are neither Recommendations, nor Declarations, Charters or similar standard-setting instruments" adopted by the General Conference of UNESCO, nor "Resolutions" adopted by the General Assembly of INTERPOL, they represent best practice at this time. Hence, States Parties are encouraged to incorporate all or part of the Basic Actions as a tool within their national context. ΚΑΤΕΡΙΝΑ 13/10/13 02:42 Eliminado: 3 ΚΑΤΕΡΙΝΑ 13/10/13 02:42 Eliminado: 4 III.J Conservation and development 84. In order to ensure the protection of cultural property, States Parties are encouraged to promote the development and establishment of scientific and technical institutions. 85. States Parties are encouraged to establish national specialist institutions where circumstances permit or to make arrangements for access to specialist institutions outside their own country where necessary. ΚΑΤΕΡΙΝΑ 13/10/13 02:42 Eliminado: 85 ΚΑΤΕΡΙΝΑ 13/10/13 02:42 Eliminado: 6 IV. MEASURES CONCERNING RETURN OR RECOVERY IV.A The request of the State Party 42

43 86. The request of a State Party to recover and return cultural property shall be made through diplomatic offices. The request shall be accompanied with all relevant the documentation and evidence(s) necessary to establish its claim for recovery and return. 87. If necessary, the State Party may call for the technical assistance of the Secretariat (see paragraph 22, 101). IV.B The role of inventories in the recovery of stolen cultural property 88. A State Party can introduce a request for the recovery and return of cultural property under the Convention only for cultural property stolen from a museum or a religious or secular public monument or similar institution in another State Party to the Convention, provided that such property is documented as appertaining to the inventory of that institution. Nevertheless, a State Party may also introduce a request even if the cultural object has not been inventoried (deriving from clandestine excavations) in case the possessor or holder does not provide the necessary export certificate of the cultural object.s). IV.C Non-retroactivity of the 1970 Convention 89. Unless otherwise expressly provided, the general rule of public international law embodied in Article 28 of the Vienna Convention on the Law of Treaties does not provide for retroactive application. No express provision has been included in the 1970 Convention. 90. A State Party can seek the recovery and return of stolen cultural property under the Convention for cultural property illegally imported into another State Party only after the entry into force of this Convention in both States concerned. However the non-retroactivity of the 1970 Convention does not affect cases prior the entry into force of the 1970 Convention involving non-states Parties or falling outside the 1970 Convention or national legislations. 91. For irreplaceable items of cultural heritage illegally exported or imported before the entry into force of the Convention in one of the States concerned, States Parties are encouraged to find a mutually acceptable agreement which does not reflect the strict application of the provisions of the Convention but is nevertheless in accordance with its spirit and its principles. 92. If the States Parties involved cannot find a mutually acceptable agreement on the basis of the spirit of the Convention, there are other possibilities to continue the discussions through diplomatic channels or via the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation (ICPRCP) (see paragraphs ). ΚΑΤΕΡΙΝΑ 13/10/13 02:52 Eliminado: 87 ΚΑΤΕΡΙΝΑ 13/10/13 02:52 Eliminado: 88 ΚΑΤΕΡΙΝΑ 13/10/13 02:55 Eliminado: 103 ΚΑΤΕΡΙΝΑ 13/10/13 02:52 Eliminado: 89 ΚΑΤΕΡΙΝΑ 13/10/13 03:01 Eliminado:... [4] ΚΑΤΕΡΙΝΑ 13/10/13 03:03 Eliminado: 91 ΚΑΤΕΡΙΝΑ 13/10/13 02:53 Eliminado: 92 ΚΑΤΕΡΙΝΑ 13/10/13 03:05 Eliminado:. ΚΑΤΕΡΙΝΑ 13/10/13 02:53 Eliminado: 93 ΚΑΤΕΡΙΝΑ 13/10/13 03:08 Eliminado: after ΚΑΤΕΡΙΝΑ 13/10/13 02:53 Eliminado: 94 IV.D Just compensation and due diligence 43

44 93. The Convention provides that the requesting State shall pay just compensation to an innocent purchaser or to a person who has a valid title to that property. However, some States Parties have made reservations which, among others, absolve other States Parties from having to pay just compensation (Cf. the list of reservations to the 1970 Convention on UNESCO s Website). 94. The Convention does not mention the terms good faith or bona fide but uses other terminology (namely innocent purchaser and person who has a valid title ), which may include acquisition by lapse of time, gift or inheritance, depending on which system of national law applies. 95. In national laws, good faith varies from an assumption of good faith to requirements of certain basic cautions against acquiring stolen or illegally removed cultural objects. This has made the application of good faith provisions very diverse, encouraging sophisticated traffickers to exploit the systems most advantageous to them. 96. The compensation for stolen or illegally exported cultural objects should be restricted to acquirers who have genuinely researched the title to the object and can bring the proof that they exercised due diligence when acquiring the cultural objects in question In this regard, the UNIDROIT Convention introduced a carefully crafted standard of precautions to be taken when acquiring cultural objects which has been adopted by the States Parties to the UNIDROIT Convention and also by others not parties to the latter convention. ΚΑΤΕΡΙΝΑ 13/10/13 02:53 Eliminado: 95 ΚΑΤΕΡΙΝΑ 13/10/13 02:53 Eliminado: 96 ΚΑΤΕΡΙΝΑ 13/10/13 02:53 Eliminado: 97 ΚΑΤΕΡΙΝΑ 13/10/13 02:53 Eliminado: 98 ΚΑΤΕΡΙΝΑ 13/10/13 02:53 Eliminado: 9 In determining whether the possessor exercised due diligence, and consequently is entitled to just compensation, these criteria concerning the circumstances of the acquisition represent current best practice. They include: - the character of the parties, - the price paid, - whether the possessor consulted any reasonably accessible register of stolen cultural objects (as for example the INTERPOL stolen works of art Database), - whether the possessor consulted any other relevant information and documentation which it could reasonably have obtained, - whether the possessor consulted accessible agencies, - whether the possessor took any other step that a reasonable person would have taken in the circumstances. 98. States Parties are encouraged to use the criteria of due diligence in assessing good faith or purchaser innocence. States Parties that seek compensation are encouraged to adopt recent best practice, which makes compensation dependent on the UNIDROIT standard of due diligence. ΚΑΤΕΡΙΝΑ 13/10/13 02:53 Eliminado: 100 IV.E Action for the recovery of stolen cultural property 44

45 99. Consistent with the laws of each State, the States Parties are required to admit actions for recovery of lost or stolen cultural property brought by or on behalf of the rightful owner(s) If there is no such action available in a State Party, this provision would require it to create one. States Parties are therefore encouraged to check that there exists, in their national system, a legal proceeding available to an owner of lost or stolen goods, and, if there is none, to institute one. IV.F Co-ordination and good offices 101. Concerning return of cultural property which has been stolen or illegally exported from its country of origin, States Parties may call technical assistance of the Secretariat, particularly good offices, to help reaching a solution mutually acceptable by them (see also paragraphs 22, 87). ΚΑΤΕΡΙΝΑ 13/10/13 03:04 Eliminado: 101 ΚΑΤΕΡΙΝΑ 13/10/13 03:12 Eliminado:... [5] ΚΑΤΕΡΙΝΑ 13/10/13 02:53 Eliminado: 2 ΚΑΤΕΡΙΝΑ 13/10/13 02:53 Eliminado: 3 IV.G The Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation ( the ICPRCP ) 102. In cases where no bilateral or multilateral agreement can be applied and the bilateral discussions have failed or are suspended, UNESCO Member States may submit a request to the ICPRCP for the return or restitution of cultural property of major significance that they consider as having been wrongfully taken. This intergovernmental body, created in 1978 and composed of 22 Members, has primarily an advisory role. It also provides a forum for discussion and negotiation on inter-state disputes in cultural property. It does not issue legally decisions In order to resolve disputes on cultural property, States may also use the mediation or the conciliation procedure proposed by the ICPRCP As the issues of stolen or illicitly exported cultural property and restitution or return of cultural property are linked, the ICPRCP and the Subsidiary Committee of the Meeting of States Parties to the 1970 Convention must collaborate in order to achieve their complementary goals. ΚΑΤΕΡΙΝΑ 13/10/13 02:53 Eliminado: 4 ΚΑΤΕΡΙΝΑ 13/10/13 02:53 Eliminado: 5 ΚΑΤΕΡΙΝΑ 13/10/13 03:18 Eliminado: 6 V. INTERNATIONAL COOPERATION V.A International cooperation when cultural property is in jeopardy 105. A State Party whose archaeological or ethnological heritage is endangered is encouraged to call upon UNESCO, UNESCO s partners and other States Parties to undertake a concerted international effort to carry out measures including the control of exports, imports and international trade in the specific objects concerned. ΚΑΤΕΡΙΝΑ 13/10/13 03:19 Eliminado: 7 45

46 106. UNESCO, its partners and other States Parties (particularly neighboring and transit countries) are encouraged to respond positively, with all possible means, to the call of the requesting State Party whose cultural property is in jeopardy (pillage of archaeological or ethnological materials). Particularly in case of conflict or natural disaster, the international community is also invited to participate in the concerted effort through UNESCO and the UN to carry out measures including the control of imports and international commerce (including on the Internet) To prevent irremediable damage to the cultural heritage of the requesting State Party, some provisional measures, where feasible, may be taken pending a prospective bilateral or multilateral agreement. The conclusion of such agreement is not required before any action can be taken but could stimulate a fruitful relationship between two or more States and enable better understanding of the requesting State Party s particular situation. It may also enhance collaboration to improve training and protection on site. ΚΑΤΕΡΙΝΑ 13/10/13 03:19 Eliminado: 8 ΚΑΤΕΡΙΝΑ 13/10/13 03:19 Eliminado: 9 V.B Occupation 108. It is contrary to international law to remove cultural objects from occupied foreign territory. This is now a principle of customary international law, which should be made clear in each national legislation. ΚΑΤΕΡΙΝΑ 13/10/13 03:19 Eliminado: 110 V.C Inter-State cooperation 109. In accordance with the legislation in force in each country, States Parties must ensure that their competent services cooperate in facilitating the earliest possible recovery of illicitly exported cultural property to its rightful owner If the States concerned by the recovery have a specialized police unit in charge of the protection of cultural heritage, this unit can play an essential role in international cooperation, in particular through the National Central Bureaus of INTERPOL. ΚΑΤΕΡΙΝΑ 13/10/13 03:19 Eliminado: 111 ΚΑΤΕΡΙΝΑ 13/10/13 03:19 Eliminado: 112 V.D Bilateral/Multilateral agreements 111. States Parties may conclude special agreements among themselves on illicit traffic or continue to implement others already established before the Convention was adopted States Parties are encouraged to incorporate into bilateral or regional agreements the highest level of protection developed in the 1970 Convention and other complementary instruments so as to ensure that such agreements embody the best protection for their cultural objects. ΚΑΤΕΡΙΝΑ 13/10/13 03:19 Eliminado: 113 ΚΑΤΕΡΙΝΑ 13/10/13 03:19 Eliminado: 114 VI. PERIODIC REPORTS ON THE IMPLEMENTATION OF THE 1970 CONVENTION VI.A Objectives 46

47 113. States Parties are requested to submit reports to the UNESCO General Conference on the legislative and administrative provisions they have adopted and other action they have taken for the application of the Convention, including the details of the experience acquired in this field Periodic reporting is valuable for the exchange of information on the manner in which different national systems are dealing with the question of illicit traffic and can assist other States Parties in implementing the provisions of the Convention. Periodic reporting also serves the important function of strengthening the credibility of the implementation of the Convention. ΚΑΤΕΡΙΝΑ 13/10/13 03:19 Eliminado: 115 ΚΑΤΕΡΙΝΑ 13/10/13 03:19 Eliminado: 116 VI.B Procedure and format 115. Reports on the implementation of the 1970 Convention must be submitted every four years To assist the national authorities, a questionnaire is at the disposal of the UNESCO Member States to ensure that their reports contain sufficiently precise information on the ratification process and legal and operational implementation of the 1970 Convention, but also on the application of other complementary normative instruments such as the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. ΚΑΤΕΡΙΝΑ 13/10/13 03:19 Eliminado: 117 ΚΑΤΕΡΙΝΑ 13/10/13 03:19 Eliminado: In order to facilitate management of information, States Parties shall submit reports in English or French, in electronic as well as in printed form to: Secretariat of the 1970 Convention 7, place de Fontenoy Paris 07 SP France convention1970@unesco.org ΚΑΤΕΡΙΝΑ 13/10/13 03:19 Eliminado: 119 VI.C Evaluation and monitoring 118. Before the creation of periodical statutory bodies (in June 2012), consideration and monitoring of these reports were entrusted to the Committee on Conventions and Recommendations of the UNESCO Executive Board. During, the 177 th session of the UNESCO Executive Board (November 2007), a specific multistage procedure for the implementation of UNESCO conventions and recommendations was adopted for which no specific institutional mechanism has yet been provided. ΚΑΤΕΡΙΝΑ 13/10/13 03:19 Eliminado:

48 119. When it was created in June 2012, the Subsidiary Committee has had, as part of its mandate, the responsibility of reviewing national reports presented to the General Conference by the States Parties to the Convention. ΚΑΤΕΡΙΝΑ 13/10/13 03:19 Eliminado: 121 VII. EDUCATION, AWARENESS-RAISING, CAPACITY-BUILDING AND PROMOTION ON THE 1970 CONVENTION VII.A Objectives 120. All means need to be used on the national and international levels to restrict the illicit movement of cultural property by appropriate education, information and vigilance. Educational means in particular should be used to help the public appreciate the value of cultural heritage and the threat to it from theft, clandestine excavations and illicit trafficking. ΚΑΤΕΡΙΝΑ 13/10/13 03:20 Eliminado: 2 VII.B Education and awareness-raising The national services for the protection of the cultural heritage, mentioned in paragraph 9, are specifically tasked with stimulating and developing respect for the cultural heritage of all States and spreading knowledge of the provisions of this Convention. This obligation can be met in various ways. Education 122. In each State Party, appropriate information on the local and national heritage and the universal heritage of the world s cultures should be coordinated with educational institutions at primary, secondary, tertiary level as well as lifelong learning programmes. ΚΑΤΕΡΙΝΑ 13/10/13 03:20 Eliminado: 124 Publications 123. States Parties are encouraged to publish materials on heritage protection (books, videos, games for children, etc.) Awareness-raising for diplomatic staff 124. Diplomatic officers should be reminded by the sending States of their duty to respect the rules of the States to which they are posted, especially those protecting national heritage. The receiving States should remind newly appointed diplomats of their duty to respect those laws, calling their attention to the obligations of the Vienna Convention on Diplomatic Relations (1961). ΚΑΤΕΡΙΝΑ 13/10/13 03:20 Eliminado: 125 ΚΑΤΕΡΙΝΑ 13/10/13 03:26 Eliminado: 6 VII.C Strengthening of capacities 48

49 125. On the national level and as a top priority, the States Parties need to ensure that all authorities dealing with cultural heritage items (customs officers, police, museums, including central and regional administrative divisions) are regularly made aware of the provisions of the Convention, their significance for the national heritage and the importance of complying with its obligations The Secretariat (Headquarters and Field Offices) provides assistance to the States Parties by developing national and regional trainings/workshops. VII.D Communication and information 127. The national services for the protection of the cultural heritage have the obligation to publicize missing cultural objects in the most efficient manner. Publicity through mass communication might make an object unmarketable and might persuade its holder to surrender it without compensation. Since communication means have become more widespread and more readily available, States Parties and the Unesco Secretariat are strongly encouraged to make use of the mass media to publicize lost and stolen cultural objects INTERPOL developed a highly efficient system for centralizing and circulating information globally in the form of a database accessible not only to law enforcement agencies but also to members of the public who have been provided with specific access rights The entities authorized to submit information to be included in the database are the INTERPOL National Central Bureaus (NCBs). In addition, under the terms of particular cooperation agreements, ICOM and UNESCO are also authorized to send information. This database cannot function efficiently without the active collection of theft information and the establishment of reporting mechanisms on a national level (especially in the absence of specialized law enforcement unit for cultural property crime ). Lack of regular contacts or established working relationships between cultural or religious institutions, museums, Ministries of Culture or customs authorities can constitute another obstacle to information transmission. By consequence, States Parties, via the national services, must improve the reporting of thefts of cultural objects to the INTERPOL National Central Bureaus in order to update the Stolen Works of Art Database The same support has to be given by the States Parties to the Project Psyche (Protection System for Cultural Heritage) launched by INTERPOL and the Carabinieri Department for the Protection of Cultural Heritage (TPC) to further increase the contents of the Stolen Works of Art Database and to facilitate on-line data searches. ICOM Red Lists 131. The Red Lists do not concern lost cultural objects, but contribute to the protection of cultural heritage at the international level. The aim of this documentation is to classify the endangered categories of archaeological objects ΚΑΤΕΡΙΝΑ 13/10/13 03:26 Eliminado: 127 ΚΑΤΕΡΙΝΑ 13/10/13 03:26 Eliminado: 128 ΚΑΤΕΡΙΝΑ 13/10/13 03:26 Eliminado: 129 ΚΑΤΕΡΙΝΑ 13/10/13 03:26 Eliminado: 130 ΚΑΤΕΡΙΝΑ 13/10/13 03:26 Eliminado: 131 ΚΑΤΕΡΙΝΑ 13/10/13 03:26 Eliminado: 132 ΚΑΤΕΡΙΝΑ 13/10/13 03:26 Eliminado:

50 or works of art in the most vulnerable areas of the world, in order to prevent them being sold or illegally exported States Parties are encouraged to disseminate these Red Lists to all stakeholders involved in the protection of cultural property (especially police and customs services). ΚΑΤΕΡΙΝΑ 13/10/13 03:26 Eliminado: 134 VIII. THE 1970 CONVENTION EMBLEM VIII.A Preamble 133. On the occasion of the 40 th anniversary commemorative meeting of the 1970 Convention held in March 2011, the Secretariat proposed an Emblem of the 1970 Convention. This emblem has not been formally adopted by the States Parties, but a large number of States Parties expressed their appreciation of its creation The Emblem consists of two simple silhouettes: the palm of a hand is superimposed on a vase without handles. The Emblem symbolizes the importance of stopping (indicated by the hand in the halt position) illicit trafficking of cultural property (symbolized by the vase (archaeological objects found in the sub-soil or already belonging to a collection) in conformity with the principles of the 1970 Convention. The pictogram also symbolizes the action of looting, which deprives an individual or a community of its cultural heritage and, therefore, of its identity. The clear outline set off against a white background contributes to making the logo easily legible and universally understood The Secretariat proposes that the Emblem be used, in any colour or size, in consideration of the intended use, the technical possibilities and graphic and aesthetic considerations The Emblem should carry the text Convention for the fight against the illicit trafficking of cultural property. VIII.B Intellectual property 137. The Emblem of the 1970 Convention and its derivatives should be adopted and then registered under Article 6ter of the Paris Convention for the Protection of Industrial Property in order to be protected. ΚΑΤΕΡΙΝΑ 13/10/13 03:26 Eliminado: 135 ΚΑΤΕΡΙΝΑ 13/10/13 03:26 Eliminado: 136 ΚΑΤΕΡΙΝΑ 13/10/13 03:26 Eliminado: 137 ΚΑΤΕΡΙΝΑ 13/10/13 03:26 Eliminado: 138 ΚΑΤΕΡΙΝΑ 13/10/13 03:26 Eliminado: 139 VIII.C Responsibilities of States Parties 138. States Parties to the Convention should take all possible measures to prevent the use of the logo in their respective countries by any group or for any purpose contrary to the 1970 Convention. States Parties are encouraged to make full use of national legislation including trademark laws ΚΑΤΕΡΙΝΑ 13/10/13 03:26 Eliminado:

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