Council of Europe Considers a Blood Antiquities Convention

By Dr. Derek Fincham*

Looters at Iraqi site of Isin, May 2003.
Photo: U.S. Dept. of Defense

















On Friday, May 19, the Committee of Ministers of the Council of Europe will meet to open a new treaty for signatures on a new Convention on Offences relating to Cultural Property. Given that the Council of Europe now has 47 member states, including both Russia and Turkey, the impact of this new Convention could be immense. This is particularly true given that the member states of the Council of Europe include art-acquiring states, transit states, and states with ancient monuments.  The Convention may even allow any non-Council state to sign on to the Convention. The work of this draft Convention could catapult the member states of the Council of Europe to the head of the pack in embracing the complementary international conventions aimed at stemming the illicit trade in cultural property.

The final text of the draft Convention has, at the time of writing, not been made public. I was able to have a look at a nearly-finished version of the text at a meeting of international legal experts at a Conference at IMT in Lucca earlier in 2017. One of the most outstanding aspects of the draft Convention is its focus on regulating all levels of the trade in cultural objects, including looters, traffickers, and end-of-the-chain art sellers and buyers. This encompassing approach will lead – I suspect – to better effective policing of the illicit trade in cultural objects and will serve to protect and aid the good actors in the art trade who are abiding by the law but have been suffering due to the unfair competition provided by illicit traffickers.

This Convention, which has been referred to as both the Nicosia agreement, and the Blood Antiquities Convention joins a growing array of international instruments that deal with cultural heritage. Those include the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, which directed its provisions at safeguarding art and heritage during armed conflict. The subsequent 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Illicit Cultural Property served to orient public international law to the problem of illicit cultural property and raised the profile of the problem of the illicit trade in works of art and the destruction and looting of cultural heritage. The 1995 UNIDROIT Convention worked to craft a model set of rules for private law amongst buyers and sellers of works of art and antiquities which may be illicit.
The Council of Europe’s new Convention emerges in this context to carry forward the lessons of those Conventions, to offer solutions to the problem of the illicit trade in antiquities—a problem which is diffuse, varied, and requires a cohesive regulatory response.

Controlling the Exportation of Cultural Objects
One particularly useful aspect of the Draft Convention is the prohibition on Export, distinguishing it from a similar, problematic aspect of the European Council Regulation. One of the flaws with the European Council Regulation on the export of cultural goods is its different treatment of regulation of the trade in cultural objects from Member States and other non-member states or third countries. Article 2(2) requires Member States to check whether goods that have come from another Member State were moved from one Member State to another in a way that is “lawful and definitive.” Due to some technical differences in language, the current Council Regulation prevents Member States from having the same checks for objects from Member States as from non-Member States which may be non-EU in origin because Article 2 does not include this “lawful and definitive” language from its scope. Article 5 of the Draft Convention effectively avoids any of this difficulty. I read the draft Convention then to mean that the Convention erects safeguards to protect against theft, illegal excavation, and illegal export of all cultural objects, irrespective of whether the object was illegally exported from a Member State or some other third country.

Measures at the domestic and international levels
Another noteworthy aspect of the draft Convention are Articles which erect concrete measures to establish inventories which are publicly accessible; introduce import and export procedures subject to specific certificates; to establish records of transactions; and to promote consultation and information across State boundaries. These measures – if properly implemented and funded – have an important and critical function which will do a great deal to make the efforts to stem the trade in illicit cultural property more effective. It is my hope that these procedures would allow the investigation into whether a work of art which has travelled through a number of individual States was properly given an export and import certificate in all of these individual states. And if not, a proper investigation and penalty regime could be erected which would serve to effectively disincentivize the illicit transfer of cultural objects across State borders. By erecting a system by which investigators can check the various exports of an object, it would be possible to both trace an object back ideally to its nation of origin, or failing that, to allow an investigator to use the export violations which have potentially occurred in transit states to secure a successful investigation, resulting either in the return of the object or in the prosecution of culpable individuals.

Conclusions
The merits of any multilateral Convention such as this will always be dependent on the political will and the resources devoted to its implementation. Given the challenges facing the world’s cultural heritage, both in terms of intentional destruction, and the looting of sites to finance illegal activity, the moment is now for a strong Criminal Convention. Its renewed emphasis on regulating exports takes account of the multinational character of the international trade in cultural heritage, its emphasis on information sharing and collaboration can effectively combat the opaque nature of certain aspects of the art trade, and will serve to work around any deficiencies present in the domestic law of other third party nations. The draft convention comes at a dangerous moment for so much of the world’s cultural heritage, and I am optimistic about its capacity to meet this challenge head-on.

*Dr. Fincham writes about the illicit trade in cultural property, he teaches writing, art law, and admiralty law at South Texas College of Law Houston. He regularly blogs at www.illicitculturalproperty.com