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CoE Cultural Property Convention Gives Blank Check to Art Source Nations

May 15, 2017.  Updated  May 26, 2017.   A new international criminal treaty on cultural property was adopted by the Council of Europe (CoE) on May 4, 2017.  The 2017 Council of Europe Convention on Offences relating to Cultural Property  opened for signature by any nation on May 19. Six nations: Cyprus, Armenia, Greece, Portugal, San Marino and Mexico, were the first to sign the new Convention.

The Convention appears explicitly designed for a wartime environment and most of its provisions are aimed directly at the art trade. Despite increasing evidence that ISIS is focused on destroying art, not on selling it, the Convention preamble states that it was created in part because illicit trade in cultural property is growing and because of concerns that, “terrorist groups are involved in the deliberate destruction of cultural heritage and use the illicit trade of cultural property as a source of financing.”

First, most informed observers believe that the overall trade in cultural property is diminishing.

Second, but more importantly, according to the International Centre for the Study of Radicalisation and Political Violence‘s (ICSR) most recent study, Caliphate in Decline: An Estimate of the Islamic State’s Financial Fortunes, and other credible sources, while journalists and analysts have “described [ISIS] as an organization generating billions of dollars of income from a combination of oil, taxes, antiquities” the facts fail to support these “grandiose claims.” Whatever income ISIS gets from selling “digging permits,” says ICSR, it can’t be quantified, and would be a very minor part of its income stream.

In fact, after years of making such claims, no one has shown evidence that trade in cultural property is financing terrorism, as Ivan MacQuisten details in a February 17, 2017 article in Homeland Security Today.

Nonetheless, Council of Europe Secretary General Thorbjørn Jagland stated that, “The terrible destructions of the ancient city of Palmyra in Syria and the ruins of Nimrud in Iraq have highlighted the concern for ‘blood antiquities’. This convention will be the first international legal instrument to fight illegal trade in the art market. It will help states to combat this criminal phenomenon effectively though a joint action at Pan European level.”

The new convention is intended to supersede the previous Council of Europe sponsored 1985 Convention on Offences relating to Cultural Property. When the new Convention was proposed in March 2016, the drafting committee declared its intention of “defining cultural property” under “well-established international norms.” Actually, Article 2 of the new Convention is just the first of many over-broad measures. The 2017 Convention on Offences relating to Cultural Property adopts the 1970 UNESCO Convention’s intentionally comprehensive definition of ‘cultural property,’ which includes, as well as archaeological artifacts, everything from paintings to postage stamps, old books, art prints, minerals, flora and fauna. (While some nations use this ‘anything goes’ standard, others limit ‘cultural property’ to archaeological items, or, like Japan, focus on key cultural artifacts of great artistic or historic importance to a nation.)

The over-broad definition is a problem, because unlike the 1970 UNESCO Convention, the new Convention on Offences relating to Cultural Property does not view the international circulation of art and artifacts as in any way beneficial – nor does it encourage source countries to establish lawful means of export. Instead, it obliges its signatories to criminalize their domestic restrictions on import, export, trade, and even possession of ‘cultural property’ based on standards for theft and “misappropriation” set by art source States.

Articles 3 and 4 define what is unlawful theft, excavation and removal of cultural property. Signatories to the Convention agree under Article 4 to make it a criminal offense not only to excavate, find and remove cultural property without State authorization, but also to retain movable cultural property excavated without State authorization or to unlawfully retain movable cultural property that was excavated in compliance with State authorization. This appears to make it criminal to hold cultural property in a State where it was previously lawful to possess it, in the event that the State later declares national ownership of such property.

Disturbingly, Articles 4, 5 and 6 give extraordinary deference – a virtual blank check – to art source nations to define European and other signatory nations’ laws on importation and the trade in art. A foreign nation’s export control can determine the receiving nation’s import controls. A foreign nation’s law prohibiting domestic ownership or trade can change the receiving nation’s laws governing trade.

Many art source nations have comprehensive laws on the books making it illegal to export or trade in a very broad range of ‘cultural property,’ sometimes as broad as the UNESCO 1970 definition, and often applying to anything over 50 to 100 years of age. These provisions would require signatory nations to the Convention to enact equally comprehensive restriction in their nations as well – imperiling not only private collecting but also the maintenance of artworks in museums. They would also require consumer nations to criminalize actions even when the source nations fail to enforce their cultural property laws, for example, when there is a law on the books against export, but the source nation nonetheless allows a public domestic market in the same goods.

Articles 5 and 6, which pertain to import and export, require signatory States to make it an offense to intentionally import or export objects unlawfully excavated or removed under the law of the State where the excavation or removal took place. The only latitude is in provisions allowing a signatory State to reserve the right to provide for non-criminal sanctions instead of criminal punishment.

Article 7 commits signatories to the Convention to make it a criminal rather than a civil offense to acquire cultural property that was stolen or “unlawfully appropriated” in a signatory nation. Article 8 is broader, making selling an item “excavated, imported or exported under circumstances described in Articles 4, 5 or 6” a criminal offense.  Acquisition and sale is to be criminal not only in circumstances where the person acquiring it knew the property had unlawful provenance, but also if the person acquiring it should have known if he or she had exercised due care and attention in acquiring it or marketing it.

This provision demands due diligence without any limits – whatever it is that “should have known” and “due care and attention” mean – without at the same time ensuring access to law enforcement databases that could provide information on stolen objects.

Article 9 requires signatory States to make it a crime to falsify documents related to cultural property.

In Article 10, the Convention finally addresses the destruction of movable or immovable cultural property, desiring signatory States to criminalize that conduct, but also reserving the right of States to apply criminal penalties only in certain conditions.

Tangential acts are also criminalized. Article 11 requires States to make aiding and abetting a criminal offense under the Convention, or even attempting to commit a crime under the Convention (except the provision regarding excavation under Article 4 and Article 8) also a criminal offense.

Corporations may be held liable where the lack of supervision or control by an individual made the commission of a cultural property crime possible, with penalties including closing of a business or temporary or permanent disqualification from operating a business, and seizure and confiscation of the proceeds from committing a cultural property offense.

All States signing the Convention are exhorted but not required to take preventive and administrative measures which include making an inventory or database of cultural property. These include introducing import and export control procedures for movable cultural property under specific certificates, imposing unspecified due diligence provisions on art and antiquity dealers, auction houses and others; requiring records of their transactions to be made available to the authorities; establishing a central national authority over cultural property; enabling the monitoring and reporting of suspicious dealings or sales on the Internet (and having Internet providers report on possible unlawful sales).  The Convention suggests that museums should comply with ‘existing ethical rules’ on the acquisition of movable cultural property and to report any suspected trafficking of cultural property to law enforcement authorities; and that information on cultural property should be given to police and other enforcement authorities (but not to the public or to art dealers).

A number of administrative measures and commitments to international cooperation fill in the rest of the Convention.

The Council of Europe is a 48 nation-member group of which 28 members are European. It describes itself primarily as an organization protecting human rights. Its membership consists of a council of foreign ministers, and a parliamentary council with representatives of national legislatures. Prior declarations of the Council of Europe, such as the NAMUR Declaration of 2015, focused on the importance of honoring cultural heritage in developing civil societies, and on access to cultural heritage as a “fourth pillar of sustainable development.” The CoE does not make law for its member nations, but can enforce some international agreements through the  European Court of Human Rights. The convention was drafted under the authority of the European Committee on Crime Problems (CDPC), in co-operation with the Steering Committee for Culture, Heritage and Landscape (CDCPP).

Through this Convention, the Council of Europe, rather than directing its efforts towards cultural preservation in countries where heritage is at risk, or to ensuring safe harbor for the artistic history of mankind, focuses entirely on criminal measures against the trade and collecting of art, and grants virtually complete discretion to any signatory state to make any object within the broadest possible definition of cultural property unlawful to acquire, sell, or transfer. In this way, one signatory nation could impose its position with respect to private or institutional ownership of virtually all cultural property onto other signatory nations.

Why did the Council of Europe deem such draconian provisions necessary or appropriate? Both the tone and the content of the convention reflect the extraordinary tensions in Cyprus, where the Convention was drafted. In Cyprus, reciprocal destruction or neglect of cultural property can be a proxy for overt clashes between Cypriot Greeks and Turks.

Clearly, a primary reason for the Convention is that politicians have accepted without question the massive media campaigns alleging that the art market is involved in terrorist looting. Although there is mounting evidence that ISIS and other terrorist entities, which are unquestionably guilty of massive cultural destruction, are not funded by looting of ancient art, these false claims have already prompted anti-trade legislation in the US, Germany, and the UK. The CoE website states that, “This form of trafficking is increasingly exploited by terrorist groups …,” a statement which is unsupported by evidence, and contradicted by the  International Centre for the Study of Radicalisation and Political Violence‘s most recent study, Caliphate in Decline: An Estimate of the Islamic State’s Financial Fortunes.

The last decades have certainly seen unprecedented harm to the artistic and cultural history of humankind. In particular, ISIS’ destruction of history and identity in order to forge a new political order cannot be condemned strongly enough. However, ISIS criminal actions cannot be remedied by attacking the art market, which has taken an uncompromising stance against trade in any looted antiquities from the Middle East and has actively cooperated with government authorities to prevent such items from reaching the market.

It remains to be seen whether nation States will sign on to this Convention without considering the future consequences to the legitimate international circulation of art. It is hoped that nations considering signing the Convention will take a hard look at its most restrictive articles and balance their prior commitment to public access to cultural heritage against provisions that could do serious harm both to cultural preservation and cultural institutions such as museums.

As a “human rights organization,” the members of the Council of Europe ought also to consider the consequences of placing too much power in the hands of governments over cultural access by individuals, especially those belonging to minority or opposition elements. Too often, governments have used control of culture to manipulate social and economic development. History provides many persuasive examples of the perils of government control of cultural resources. CoE members and potential signatory States could benefit by comparing the damage to cultural heritage and cultural identity wrought by national governments, which have been the greatest usurpers of human and intellectual rights, to the ‘damage’ that can be laid at the door of the art trade.

Image: Council of Europe flag, Council of Europe location.

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