Transcript Dia 1 - UNIDROIT

Ministry of Education, Culture
and Science, the Netherlands
Implementation of
UNIDROIT 1995principles in the
Netherlands
Flora van Regteren Altena
Directorate of Cultural Heritage
2
Legal Framework protection of cultural property
Ratified Conventions
• The 1954 Hague Convention for the protection of Cultural Property
in the Event of Armed Conflict (1959)
Protocol (1959, implementation Act 2007)
Second Protocol (2007, implemented 2003 International
Crimes Act)
• The UNESCO 1970 Convention (2009, 2009)
3
Legal Framework protection of cultural property
EU, Council of Europe
• European Convention on the Protection of the Archaeological
Heritage, Valletta 1992 (2007, 2007)
• Council Directive 93/7/EEC of 15 March 1993 on the return of
cultural objects unlawfully removed from the territory of a Member
State
4
Legal Framework protection of cultural property
National legislation
• Cultural Heritage Preservation Act
(1984/2002/2009)
• Monuments and Historic Buildings Act
(1988)
• Protection of Cultural Property against
Illegal Export (Implementation) Act
(1995)
5
Intergovernmental instrument?
- Exception of principle of in Civil Code of ‘buyer in good faith’
- UNIDROIT 1995 or UNESCO 1970
- Effective protection desired of cultural property, national and
international
- Respect and acknowledgement of own cultural heritage by other
states
- Illicit traffic damaging for cultural heritage of a country (NL is transit
country and market)
- Need to connect to international rules/standards
- Freedom of implementation
- Ethical codes, e.g. trade, museums: implementation UNESCO 1970
was already practice
6
7
UNIDROIT?
2004: letter Minister to Parliament: UNIDROIT would not be sent for
approval to parliament, because:
Scope of concept of cultural good very broad, UNESCO:
limited/restricted -> designated cultural goods, being important for
archaeology, pre-history, history, literature or science
Terme for extinctive prescription 50 years from moment of theft:
heavy burden for normal trade
< 30 staten (now 32), UNESCO then 118 (now 122): limited
effectiveness
8
Implementation Act 1970 UNESCO Convention
UNESCO+
Elements of UNIDROIT 1995:
• Private law approach: regulations in the NL Civil Code
and in the NL Code of Civil Procedure
• Due dilligence
• No penalties or administrative sanctions (U1970 art
8) in implementation Act
9
Due dilligence
(UNIDROIT art 4 (4) implemented in Art 87a Civil Code)
Due diligence in acquiring cp depends on:
• The capacity of the parties
• The price paid
• Consultancy of every reasonably accessible register of
stolen cp etc Information: Customs, ministery of Culture,
National Museum, www.icom.museum/redlist (Africa,
South America, Peru, Afghanistan, Iraq)
• Whether the possessor took all steps that a reasonable
person would have taken in the circumstances
10
Due dilligence dealer
For artdealer/auctioneer requirements
dealer/auctioneer must also:
Ascertain the identity of the seller
A written declaration of the seller that he is competent to
dispose of the property
Record of name and address of the seller, purchase price
paid, description of the property
Consultancy of registers
11
Implementation Act 1970 UNESCO Convention
Different from UNIDROIT:
- Definition of Cultural property
NL Act: property which has been designated by each state, on
religious or secular grounds, as being of importance for
archaeology, prehistory, history, literature, art or science and
hence of essential importance to its cultural heritage and
which belongs to one of the categories of cultural property
listed in article 1 of the (1970) Convention.
UNIDROIT: cultural objects are those which, on religious or
secular grounds, are of importance for archaeology,
prehistory, history, literature, art or science and belong to one
of the categories listed in the Annex to this Convention.
12
Implementation Act 1970 UNESCO Convention
Different from UNIDROIT
Time limits in relation to returns to State /rightful claimant
• UNIDROIT: claim within 3 years after location is known,50 years
after theft; indefinite, possible limit 75 years or more
• NL Act:
- Institute proceedings for return: up to 30 years after the
cultural good has left the country of origin
- Extended time limit up to 75 years: if cultrual good from
public or ecclesiastical collection in the country of origin, and
registered in inventory
- Proceedings for return : up to five years after whereabouts of
good and possesor becomes known
13
14
15