Implementation of UNIDROIT 1995- principles in the Netherlands

Flora van Regteren AltenaDirectorate of Cultural Heritage

Ministry of Education, Culture and Science, the Netherlands

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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)

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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

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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)

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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

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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 scienceTerme 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

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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

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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

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Due dilligence dealer

For artdealer/auctioneer requirementsdealer/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

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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.

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Implementation Act 1970 UNESCO ConventionDifferent 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

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