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The Protection of Cultural Property: From UNESCO to the European Community with Special Reference to the Case of the Netherlands*
Published online by Cambridge University Press: 07 July 2009
Extract
The codification of principles designed to protect cultural property was first attempted in the 19th century. Initially, the aim was to afford international protection to movable and immovable cultural property of historical, scientific or artistic importance in time of war. Only in the 20th century has it been felt necessary to protect movable cultural property in peacetime, particularly against illegal trade and theft.
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References
1. See e.g., the so-called Lieber Code of 1863, Arts. 34–36, in Schindler, D. and Toman, J., eds., The Laws of Armed Conflict, 3rd edn. (1988) pp. 8–9.Google Scholar
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3. 10 ILM (1970) p. 289; Trb. 1952 No. 50.
4. 11 ILM (1972) p. 1358; Trb. 1973 No. 155. See for the various measures and activities as undertaken by UNESCO, for instance: Goy, R.H.M., ‘The International Protection of the Cultural and Natural Heritage’, 4 NYIL (1973) pp. 117–141.CrossRefGoogle Scholar
5. 25 ILM (1986) p. 44; ETS No. 119.
6. Viz., Cyprus, Greece, Italy, Liechtenstein, Portugal and Turkey.
7. Art. 21 of the Convention reads as follows: ‘This Convention shall enter into force on the first day of the month following the expiration of a period of one month after the date on which three member States of the Council of Europe have expressed their consent to be bound by the Convention…’
8. Council of Europe, CDCC (91) 1 Final, p. 102.
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18. Dumont, G.H., De actie van de Europese Gemeenschap in de culturele sector (European Community action in the cultural sector) (1980) p. 18.Google Scholar
19. Steenhuis, P., ‘Er zijn meer Rembrandts gestolen dan geschilderd’ (‘More Rembrandt paintings have been stolen than painted’), NRC-Handelsblad (28 June 1991).Google Scholar
20. See the Annual Reports of the National Criminal Intelligence Service, The Hague. That not even the contents of Dutch museums are safe is evident from, for instance, the spectacular theft of three paintings by Van Gogh from the Kröller-Müller Museum in December 1988 and especially from the theft of twenty Van Goghs from the Van Gogh Museum in Amsterdam in the spring of 1991.
21. de Schutter, B., ‘De strafrechtelijke bescherming van het kunstpatrimonium’ (’Criminal law protection of cultural patrimony’), Liber Amicorum Frédéric Dumon (1983) p. 1125.Google Scholar
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23. Shanaberger, loc. cit. n. 11, p. 162.
24. Walter, op. cit. n. 9, p. 49.
25. Act of 1 February 1984, Stb. 1984 No. 49.
26. UNESCO General Conference, 13th session, Paris, 20 October-20 November 1964.
27. UNESCO General Conference, 16th session, Paris, 12 October-14 November 1970.
28. Williams, op. cit. n. 22, p. 179.
29. Holsti, K.J., International Politics (1983).Google Scholar
30. Williams, op. cit. n. 22, p. 178 et seq.
31. Art. 1 of UNESCO Convention reads as follows:
‘For the purpose 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 archeology, 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 palaeontological interest;
b. property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance;
c. products of archeological excavations (including regular and clandistine) or of archeological discoveries;
d. elements of artistic or historical monuments or archeological 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: 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; 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, revenu and similar stamps, singly or in collections;
j. archives, including sound, photographic and cinematographic archives;
k. articles of furniture more than one hunderd years old and old musical instruments.’
32. Art. 4 of the UNESCO Convention reads as follows:
‘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 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;
c. cultural property acquired by archeological, 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.’
33. Art. 2(2) of the 1970 UNESCO Convention.
34. Ibid., Art. 6(a).
35. Ibid., Art. 3: ‘The impart, export or transfer of ownership of cultural property effected contrary to the provisions adopted under this Covention by States Parties thereto, shall be illicit.’
36. Ibid., Art. 5(f) and (g).
37. Ibid., Art. 6(c).
38. Ibid., Art. 7(a).
39. Ibid., Art. 10(a).
40. Ibid., Art. 13(a).
41. Ibid., Art. 13(b).
42. Ibid., Art. 14.
43. For the ratification problems reference can be made, for example, to the following UNESCO Documents:
44. UNESCO Doc., General Conference, 20C/84, Annex, 1978.
45. It is worth mentioning that a number of countries which are not members of UNESCO ratified the Convention in the late 1980s.
On 13 May 1987 several countries in Asia and the Pacific were invited to accede pursuant to Art. 20(1). See UNESCO Doc., Executive Board, 126EX/41 Rev., 1987.
46. UNESCO Doc., General Conference, 24C/24, Annex I, 1987.
47. Williams, op. cit. n. 22, p. 189 et seq.
48. Intergovernmental Conference on Cultural Policy in Europe, S.1, 1972, p. 9 et seq.
49. ‘Community Action in the Cultural Sector’, Bulletin of the European Communities, Supplement 6/77, p. 9.
50. Ibid., p. 9 et seq.
51. Prott, L.V. and O'Keefe, P.J., National Legal Control of Illicit Traffic in Cultural Property (1983).Google Scholar
52. Reichelt, G., Protection of Cultural Property (1986)Google Scholar (Unidroit Study 70, Doc. 1). A follow-up study was later published by the same author: The International Protection of Cultural Property (1988)Google Scholar (Unidroit Study 70, Doc. 4). It also considers the question of the acquisition of valid title. The issue has been a matter of priority within Unidroit since 1988. A working group has been set up. In 1990 it presented the preliminary draft Unidroit Convention on stolen or illegally exported cultural objects (Unidroit Study 70, Doc. 19). This preliminary draft was first discussed by a committee of governmental experts in May 1991. The draft has since been studied at two meetings of governmental experts. The draft makes a distinction between stolen and illegally exported property, which remains relevant throughout the convention. Chapter II, dealing with stolen cultural goods, obliges the possessor of a stolen cultural object to return it, subject to the provisions of the convention. Chapter III, dealing with illegally exported goods, does not go as far as unconditionally requiring the possessor to return the cultural object. The court or other competent authority of the requested State has the dicretionary power to refuse to return the object if certain conditions have not been fulfilled.
53. After 1987 no UNESCO documents were made available so as to reveal further discussions.
54. The position of the Netherlands is dealt with at length in the next section.
55. UNESCO Doc., General Conference, 20C/84, 1978, pp. 33–46.
56. UNESCO Doc., CLT/CH/CS.51/2, Annex II, 1983, pp. 1–4.
57. UNESCO Doc., General Conference, 24C/24, Add. I, 1987.
58. UNESCO Doc., General Conference, 24C/24, 1987, p. 19.
59. UNESCO Doc., CLT/CH/CS.51/2, Annex II, 1983, p. 4.
60. UNESCO Doc., CLT/CH/CS.51/4, 1983, p. 7 et seq.
61. Also one of the desiderata referred to in the policy document Towards a New Museum Policy (1976) p. 44.Google Scholar
62. UNESCO Doc. 26 C/92. The report of the Intergovernmental committee for promoting the return of cultural property to its countries of origin or its restitution in case of illicit appropriation on its activities makes reference to national measures of ‘importers’ of cultural property to curb illicit traffic.
63. Wet tot Behoud van Cultuurbezit (1 February 1984, Stb. 1984 No. 49).
64. Art. 7(3) of the Cultural Heritage Preservation Act.
65. Explanatory Memorandum, Lower House, 1980–81 session, 16749, Nos. 3–4, p. 15.
66. Mesures à prendre pour interdire et empêcher l'importation, l'exportation et le transfert de propriété illicites des biens culturels, UNESCO Doc. SHC/MD/5 (1970).
67. ‘Community Action in the Cultural Sector,’ loc. cit. n. 49, p. 9.
68. Hand. II, 1976–77 session, public committee meeting 12, 21 February 1977, p. 460.
69. UNESCO Doc. CLT/CH/CS.51/2, Annex II, p. 2 et seq.
70. For further information on this Act see Clark, I.C. and Levy, L.E., National Legislation to Encourage International Cooperation (1986) pp. 213–231.Google Scholar
71. UNESCO Doc., General Conference, 22C/93, 1983, p. 5.
72. S. 39 of the Canadian Cultural Property Export and Impart Act 1975.
73. See, for example, Dumont, op. cit. n. 18, p. 19; ‘Community Action in the Cultural Sector,’ loc. cit. n. 49, p. 7 et seq.
74. See infra, section 3.
75. Memorandum of Agreement, Lower House, 1981–82 session, 16749, No. 6, p. 5.
76. Art. 2014(2) of the old Civil Code and Book 3, Art. 86 of the New Civil Code, which came into force on 1 January 1992.
77. Some see this as the only way in which the illegal trade in cultural property can be effectively tackled. See Walter, op. cit. n. 9, p. 190.
78. International Legal Protection of Cultural Property, Proceedings of the 13th Colloquy on European Law (Delphi, 20–22 September 1983), Council of Europe (1984) pp. 124–126.
79. If a civil law approach is adopted, the responsibility for establishing the legality of the export rests with the dealer. In addition, there is a chance of disputes being settled before legal proceedings are initiated because the likely outcome of such proceedings can be weighed up well in advance. Walter refers to this procedure as ‘the only possible way’: Walter, op. cit. n. 9, p. 189.
80. Bijl. Hand. II 1989/90 – 21300, Chap. V, No. 78.
81. Bijl. Hand, II 1990/91 – 21800, Chap.V, No. 66.
82. Case 7/68, Commission v. Italy [1969] ECR 423. This case is also relevant to the protection of the cultural heritage far other reasons: the Court ruled in this case that cultural items are goods within the meaning of the EEC Treaty since they are ‘goods … which can be valued in money and which are capable, as such, of forming the subject of commercial transaction.’
83. This communication was drawn up by the Directorate-General for the Internal Market and Industry (DG III). As the communication is still at the preliminary draft stage, it does not have an official publication number.
84. Communications from the Commission do not have any explicit legally binding status. They must be seen in the light of the powers which the Commission derives from Art. 155 of the EEC Treaty to formulate recommendations and to deliver opinions with interpretative relevance.
85. 2 The Art Newspaper (November 1991) No. 12, p. 1.
86. The Decree of 13 March 1985 (Stb. 1985 No. 262) containing an order in council to implement Arts. 3(3) and 21 of the Cultural Heritage Preservation Act then states in the first paragraph of Art. 2 that an object satisfies the requirements set out in s. 1a of the Act if it can be described as irreplaceable and indispensable. The second paragraph of Art. 2 then interprets the term ‘irreplaceable’. The third paragraph of Art. 2 states that an object is to be regarded as indispensable if it has one or mere of the following properties: it commemorates a person or event of great historical importance, it represents a stage in a development of interest to researchers, or it adds to the sum of knowledge.
87. COM(91) 447 final - SYN 382.
88. Communication to the Council on the protection of national treasures possessing artistic, historic or archeological value: needs arising from the abolition of frontiers in 1992, COM (89) 594 final of 22 November 1989.
89. The General Agreement on Tariffs and Trade (GATT) includes a provision similar to Art. 36 of the EEC Treaty relating to trade with third countries covered by the GATT: Art. XX(f) states that the GATT does not preclude measures imposed for the protection of national treasures of artistic, historic or archaeological value belonging to a contracting party.
90. Although the customs aspects of Community exports will not be discussed here, it can be said that Regulation 2603/69 provides for a common system applicable to exports. Moreover, the nomenclature used by the customs authorities includes a separate category for cultural items (Chap. 97 of the Common Customs Tariff).
91. Arts. 68 and 139 of the 1979 Customs and Excise Management Act.
92. I.e., the inspector referred to in Art. 1(e) of die Cultural Heritage Preservation Act.
93. The list contains some 600 items in total. Approximately 50 owners are visited each year by the inspector.
94. COM(91) 447 final - SYN 382.
95. COM(89) 594 final, point 42.
96. Opinions may differ, far example, on the compensation to be paid to a purchaser in good faith, the value at the time of purchase or the current value, and on whether the ensuing procedures should be handled by the usual judicial authorities or whether a special procedure should be established, etc.
97. Proposal far a Council Regulation (EEC) on die export of cultural goods and the proposal for a Council Directive on die return of cultural objects unlawfully removed from die tenitory of a Member State, COM (91) 447 final - SYN 382, 10 February 1992, OJ No. C 53, 28 February 1992, pp. 8–11.
98. Art. 113, paras. 1 and 2, read as follows:
‘1. After the transitional period has ended, die common commercial policy shall be based on uniform principles, particularly in regard to changes in tariff rates, the conclusion of tariff and trade agreements, the achievement of uniformity in measures of liberalization, export policy and measures to protect trade such as those to be taken in case of dumping or subsidies.
2. The Commission shall submit proposals to the Council for implementing the common commercial policy.’
99. The Commission has chosen for the annexes to both proposals to be identical. Although no explicit reference is made, the Annexes are clearly based on the definition of ‘cultural good’ used in the 1970 UNESCO Convention. (See n. 31 supra).
100. In Doc. COM (91) 447 final the Commission once again reserves the right to issue an interpretative communication.
101. Art. 1(2).
102. With respect to the terminology regarding the person having possession of the object, the proposal is not very clear. Such concepts as holder, possessor and acquirer are used throughout the text.
103. In the case of an illegal export, however, it will usually be the owner himself who is responsible; in the case of theft a private owner has other ways of recovering the stolen object
104. Art. 1(4) describes the requested State as the ‘Member State on whose territory a cultural object unlawfully removed from the territory of another Member State is located.’
105. Under the Dutch Cultural Heritage Preservation Act a similar procedure was followed. The district court of The Hague is appointed as the competent court for proceedings arising out of the application of the act.
106. In the Dutch language version of the draft Art. 9 speaks of ‘proven’ instead of ‘found’. ‘Proven’ seems to be the appropriate term.
107. According to the rules of private international law the lex rei sitae would normally apply.
108. In the famous Ortiz case (Attorney-General of New Zealand v. Ortiz and others), in which New Zealand attempted to recover from the United Kingdom some Maori carvings illegally exported from its territory. As recently as 1983 the Court of Appeal refused to apply New Zealand law. As Lord Denning put it: ‘If any country should have legislation prohibiting the export of works of art … then that falls into the category of “public laws” which will not be enforced by the courts of the country to which it is exported … because it is an act done in the exercise of sovereign authority which will not be enforced outside its own territory.’ [1983] All ER 451, at p. 459.
109. Public policy or ordre public is usually accepted as a means of last resort by which the forum can reject a rule on the grounds that it is incompatible with the fundamental policies and interests of the forum State.
110. Some courts might consider the equivalent of the purchase price to be fair compensation. Other courts might take the market prices into account or costs made by the possessor such as restoration costs.
111. The article derogates from the principle that property rights are governed by the lex rei sitae, which during prodeedings is not the law of the requesting State.
112. Art. 100A, para. 1 states: ‘ …The Council shall, acting by a qualified majority on a proposal from the Commission in cooperation with the European Parliament and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and the functioning of the internal market.’
113. Case C-300/89, Commission v. Council, 11 June 1991. (Summary and annotation in ELR (1992) p. 127).
114. See the following section.