Article by Shashwat Singh,
Although the health, economic, and social ramifications of COVID-19 have been the subject of extensive discourse, the grave impact of this unprecedented crisis on the safety of our shared tangible cultural heritage has received little attention. Experts have pointedly warned that opportunities for cultural racketeering have increased since the onset of the pandemic. Artifact looters have pillaged loosely-guarded archaeological sites and art thieves have stolen paintings from understaffed museums. The global lockdown has also led to an alarming increase in the incidence of antiquities trafficking on the internet.
These complex challenges exacerbated by COVID-19 call for a critical assessment of the international legal instruments that are aimed at protecting cultural objects. In this regard, there are two relevant treaties: the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 (“UNESCO Convention”) and the Convention on Stolen or Illegally Exported Cultural Objects 1995 (“UNIDROIT Convention”). While the former lays down the basic framework for the transnational protection of cultural property, the latter builds on it by formulating minimal legal rules for restitution and consolidating the rules of international procedure and private international law. Given the more comprehensive purview of the UNIDROIT Convention, this article scrutinizes the strengths and weaknesses of some of its provisions and analyzes their implications against the backdrop of COVID-19.
UNIDROIT Convention Safeguards vis-à-vis COVID-19
At the outset, the UNIDROIT Convention delineates the scope of cultural objects by adopting a dual approach: Article 2 provides a general, inclusive definition of cultural objects and the Annex lays down an exhaustive list enumerating categories of cultural objects. The two clauses operate in conjunction with one another to eliminate their individual drawbacks and plug any residual gaps. Further, the UNIDROIT Convention widens the ambit of protection by allowing claims that involve non-inventoried cultural objects belonging to private parties. It also facilitates the institution of claims directly in the domestic courts of the contracting states, thereby eliminating the dependency on administrative and diplomatic procedures that require governmental intervention. The combined effect of these provisions is that owners of cultural objects are equipped with a broad, practical, and effective legal remedy in the event of theft. Access to such a legal recourse has current significance because the pandemic has triggered an upsurge in the theft of cultural objects.
The regulatory framework of the UNIDROIT Convention grants extensive protection to stolen cultural objects, finding its basis on the legal and philosophical premise that theft is a universally reprehensible act which must be averted under all circumstances. Moreover, all contracting states agree that, in order to curb illicit trade in cultural property, the obligation to return a stolen cultural object must be absolute. Accordingly, Article 3(1) provides that in claims for restitution of a stolen cultural object, there is an unconditional obligation on the possessor to return the object to its dispossessed owner. This principle of automatic restitution enhances the legal protection that is traditionally granted to dispossessed owners and serves as a potential deterrent in the face of escalating cultural property theft during the COVID-19 crisis.
The UNIDROIT Convention also fosters self-regulation and vigilance in the acquisition of cultural objects. For instance, Article 4(1) provides that when the possessor of a stolen cultural object is required to return the object to the rightful owner, such possessor is entitled to compensation from the owner, provided it can successfully prove adherence to the principles of “good faith” and “due diligence.” Considering that COVID-19 has given fresh impetus to clandestine dealings involving cultural objects, this provision acts as a strong monetary incentive for potential purchasers of cultural objects to conduct thorough provenance research and actively police their acquisitions.
With respect to the time limitation for bringing restitution claims concerning stolen cultural objects, Article 3(3) provides a dual limitation period: (i) an absolute limitation period of fifty years from the occurrence of the theft and (ii) a relative limitation period of three years from when the claimant becomes privy to both the location of the object and the identity of its possessor. The relative limitation period is based on the equitable “discovery rule,” which states that the statute of limitations begins only when the dispossessed owner discovers both the location of the stolen cultural object and the identity of its possessor. Since COVID-19 has precipitated investigative and procedural delays, the application of this provision ameliorates the situation by ensuring that the statute of limitations will start only when the owner has gathered sufficient information to bring an effective legal action.
Lastly, Article 8(2) establishes arbitration as a viable alternative for the settlement of restitution claims by allowing parties to mutually submit their dispute to arbitration. The introduction of arbitration as a means of dispute resolution in the realm of international cultural property law provides significant benefits such as facilitating the appointment of subject-matter experts as arbitrators, ensuring confidentiality, enabling forum neutrality, increasing speed and efficiency of proceedings, and simplifying enforcement due to mutual consent of parties. In light of COVID-19, the practical advantages of arbitration have become all the more palpable. The inherent procedural flexibility of arbitration allows a comfortable transition from physical hearings to virtual proceedings. The shift to digital arbitration involves additional benefits such as swift proceedings, cost savings, and lower ecological footprint due to paperless operations and elimination of travel to arbitral venues.
One Step Forward, Two Steps Back?
Any discussion regarding the usefulness of the UNIDROIT Convention would be incomplete without addressing its weaknesses. Oft-cited amongst these is its failure to gain wide acceptance in the international community. To date, it has 48 contracting parties, which is paltry when compared to the 140 contracting parties of the UNESCO Convention. The number of signatories to a convention is not an accurate indicator of its success since legal instruments that make substantive changes to existing rules tend to take a long time to be universally adopted. However, the question arises as to how effectively the UNIDROIT Convention can confront the alarming issue of international cultural property theft when only a small number of countries are party to the instrument.
From a more technical perspective, there is further room for improvement. For instance, the lack of definitions for various terms such as “stolen,” “fair and reasonable compensation,” “claimant,” and “possessor” invites rightful criticism that the language of the provisions is too vague to facilitate uniform interpretation. Another concern is that the non-retroactivity clause under Article 10 bars recovery claims for cultural objects that are stolen before the UNIDROIT Convention is adopted in both the state where the claim has originated and the state where the claim is brought. The underlying rationale for the inclusion of this clause was that, by protecting nations from being penalized for their past objectionable acts, the UNIDROIT Convention would attract widespread ratification. However, the fundamental problem with this reasoning is that it inadvertently favors the interests of “market countries” (which are the eventual destinations of stolen cultural property) over the interests of “source countries” (which are the original owners of stolen cultural property). This is because non-retroactive application effectively approves past illegal conduct of market countries and disregards the long-standing demand of source countries to allow recovery of cultural objects that have been wrongfully taken from them over several decades. Arguably, the lack of ratification by major source countries such as Egypt, India, Iraq, Japan, Mexico, and Turkey is a testament to the problematic nature of the non-retroactivity clause.
It is evident that the aforementioned deficiencies considerably restrict the scope of actual enforcement. Promisingly, the resolution of such technical shortcomings will likely prompt more nations to become signatories, which in turn will enhance the overall efficacy of the UNIDROIT Convention in tackling the challenge of transnational theft of cultural objects.
Conclusion
With the tumultuous year of 2020 marking the 25th anniversary of the UNIDROIT Convention, it is pivotal to not only take stock of the accomplishments made thus far but also examine the thorny issues that impede future progress. The foregoing analysis demonstrates that while the UNIDROIT Convention can neutralize some of the adverse consequences associated with international cultural property theft in the aftermath of COVID-19, its substantial flaws stand in the way of unlocking its broad-ranging potential.
Given the dire impact of the pandemic on the security of cultural property, it is undeniable that the relevance of the UNIDROIT Convention has never been more resounding than it is today, and will continue to grow by leaps and bounds in the foreseeable future. However, it remains to be seen whether the COVID-19 crisis will induce any concrete attempt to rework the nebulous and problematic aspects of the UNIDROIT Convention.
Author
Shashwat Singh is a recent B.A. LL.B. graduate from Hidayatullah National Law University, Raipur (India). He is interested in Art and Cultural Heritage Law and aspires to pursue further studies in this field. His previous research works have been published in reputed international journals and can be accessed here and here.