Distribution limited

National Legal Control

of Illicit Traffic
in Cultural Property

bY
Lyndel V. Prott
Reader in International Law
and Jurisprudence
University of Sydney

P.J. O’Keefe
Senior Lecturer in Law
University of Sydney
Distribution: limited PARIS, 11 May 1983
Original: English

UNITED NATIONS EDUCATIONAL,

SCIENTIFIC AND CULTURAL ORGANIZATION

NATIONAL LEGAL CONTROL OF ILLICIT

TRAFFIC IN CULTURAL PROPERTY

Lyndel V. Pratt
Reader in International Law
and Jurisprudence
University of Sydney

P.J. O'Keefe
Senior Lecturer in Law
University of Sydney

0 UNESCO, 1983

CLT-83/WS/16
The authors are responsible for the choice and presentation
of the factapontained in this study and for the opinions
expressed therein, which are not necessarily those of Unesco
and do not commit the Organization. The designations employed
and the presentation of material throughout the publication
do not imply the expression of any opinion whatsoever cm the
part of Unesco concerning the leg&L status of any country,
territory, city or area or its authorities, or concerning the
delimitation of its frontiers or boundaries.
 CONTENTS
Page

001 INTRODUCTION 1
002 Exporting countries 1
003 Transit countries 2
004 Importing countries 2
005 Usefulness of this distinction 2

006 EXPORTINGCOUNTRIES 4
007 THE DEFINITION OF CULTURALPROPERTYFOR EXPORT CONTROL 4
008 ~crpose of the definition 5
009 Definition practice 6
010 Enumeration 6
011 Categorization 7
012 Classification 8
013 Advantages and disadvantages 8
014 Other criteria - age 10
015 Other criteria - local origin 11
016 Other criteria - administrative discretion 12
017 Inadequacy of definition 13
018 Over-inclusive definitions 14
019 Harmonisation of definitions 15
020 The imwntory sg+x?em 16
021 Breadth of use of the inventory system 17
022 Private collections 17
023 ORZGIN OF ILLEGALLY EXPORTEDGOODS 18
024 Clandestine' sxcavations 19
025 International prohibition 19
026 National protection of archaeological sites 20
027 Control measures 20
028 Improvement of control 22
029 Education and public information 22
030 Creation of special zones 22
031 Claims of international assistance 23
032 Theft 23
033 . Preventive measures 24
034 Improvements in security 25
035 Identification of stolen property 26
036 Ownership 26
037 Notification of theft or loss 27
038 Publicizing thefts 27
039 Publicizing acquisitions 28
040 Checking provenance 28
041 Inventories 29
042-043 Creation of special offences 29
044 Responsibility of custodians 31
045 Penalties and sanctions 31
046 Severity of penalty 33
047 Detection 33
 Page

048 !i%zde 33
049 Prohibition of trade 34
050 Notification of transfer 34
051 Licensing of dealers 34
052 Registration of collectors 36
053 Illegal trade 36
054 TYPE OF EXPORTCONTROL 37
055 Prohibition 37
056 Export Zicensing 38
057 Effect on intern.ationaZ cuZturaI exchange 39
058 Oh'NERSEIP 40
059 ArchaeoZogicaI heritage 40
060 Artistic heritage 42
061 EXPORTLICENCES 42
062 Identification of object 44
063 Misuse of Zicences 45
064 Classes of ticence 45
065 Decision on application 46
066 Grotcrrds of decision 47
067 Right of pre-emption 48
068 Packing and SeaZing 49
069 contents of ticence 50
070 Eqort tux 50
071 Refusal of ticence 51
072 AppeaZ cTgainst refusal 53
073 Safeguards on refusat 53
074 POLICIlVG OF EXPORTPROHIBITIONS AND LIGZ'NCES 54
075 Lau enforcement agencies' 55
076 Customs controt 55
077 Baggage inspection 56
078 Customs evasion 57
079 Expertise of customs officers 58
080 Limits of customs control 60
081 DecZmvztions on oath 60
082 Misuse of the diplomatic bag 61
083 Controt of offences by dipZomats 61
084 Trave 2 control 62
085 Restrictions on foreigners 63
086 Publicity 64
087 SANCTIONSAND PENALTIES 64
088 Fines 65
089 Addition& monetozy per&ties 65
090 Actions for damages 66
091 Nutlity of tmnsactions 66
092 Incapacity 67
093 Imprisonment 67
094 Confiscation of object 67

(ii)
 Page

095 Other confiscatory measures 68

096 AZternutive and cumulative penalties 69
097 Aggravated penalties 69
098 Extradition 70
099 PERSUASIVEPROVISIONS 70
100 INALIENABILITY OF GOODSIN PUBLIC HANDS 71
101 RECOMMENDATIONS 72

102 TRANSIT COUNTRIES 73

103 GEOGRAPHICALLYADVANTAGEDSTATES 73
104 Regional agreements 74
105 "ART kMRKET" STATES 75
106 Policy and practice in the trvzde 75
107 Authenticating 76
108 Evaluation 78
109 Restoration' 79
110-111 Sate 80
112 Auction 83
113 Recording of transactions 85
114 Operation of local lega ruZes 86
115 RECOl&ENDATIONS~ 86

116 IMPORTING COUNTRIES 88

117 EVOLUTION OF PRACTICE 88
118 CUSTOMSCONTROL 89
119 ACQUISITIONS POLICY OF MUSEUMS 90
120 ACQUISITIONS BY INDIVIDUALS 92
121 TRADE 93
122 ENFORCEMENT OF EXPORT CONTROLSOF OTHERSTATES 93
123 Import prohibition 93
124 Procedure under the 2970 UNESCOConvention 93
125 Requests through diplomatic channets 95
126 Co-operation between adninistrations 95
127 Co-operation betieen private institutions 96
128 Bikterrzz agreements 96
129 Regional agreements 97
130 LITIGATION 98
131 CZuim by a foreign State 99
132 Property in the public domain 99
133 Distinction between public and private property 100
134 Sale and illegal export 101
135 Illegal export and sale 101
136 Theft and illegal export 102
137 Theft, illegal export and sale 104
138-139 Property not in the public domain 104
140 Claim by an individual 106
141 Limits of jurisprudence 108
142 Operation of ZegaZ ruZes 109
143 Choice of law 110
144 The bona fide purchaser for value 110
145 Statutes of limitation 112
146-147 Standing to sue 113
148 Foreign penal, revenue and other public laws 115

(iii)
 Page

149 Public policy 116

150 Attitudes to property 117
151 EDUCATIONAND PUBLIC INFORMXTION 120
152 Professional bodies 121
153 Genera2 pubZic 121
154 RECOMlENDATIONS 122

155 INTERNATIONAL ACTION 123

156 UNIFICATION OF TECHNICAL RULES OF CONFLICTS OF LAW 123
157 Sumey of ruZes 124
158 Effect of legal rules 125
159 ProposaZs for improvement 125
160 Internationat convention adopting these ruZes 127
161 Procedures to encourage acceptance 129
162 INFORM4TION ON PROVISIONS OF NATIONAL LEGISLATION 130
163 Continuing publication by UNESCO 130
164 Computerized Zegiskztive survey 131
165 ASSISTANCE LV PREPARlil'G lXVENTORIES 132
166 ASSISTANCE IN DRAFTING LEGISLATION 132
.167 ASSISTANCE IN TRAINING CUSTOJlSOFFICERS 133
168 RESEARCHINTO CAUSES, SCOPEAND EFFECT OF ILLICIT TRAFFIC 134
169 PROMOTIONOF REGIONAL ARZANGEMENTS 135
170 REC@~DATIONS 136

FINAL RECOMMENDATIONS 137

171 ATTHEIl'lTERNATIONAL LEVEL 137
172 EXPORTINGSTATES 138
173 TRANSIT STATES 140
174 IMPORTING STATES 142

Bibliography 143
[OOll INTRODUCTION. For the purposes of this report the
division into "exporting", "transit" and "importing" coun-
tries has been used. This is, however, to some extent an
inaccurate classification.

LOO21 Exporting countries. This designation includes

especially developing countries (South American, African,
Oceanic and Asian) which have distinctive, sought after
cultural riches, together with limited resources for polic-
ing. Some have great cultural riches (e.g. some South
American States, Kampuchea), others have already been almost
totally exploited (e.g. Nauru), others have small distinc-
tive cultures which they are fighting to preserve and for
which they need to establish an adequate national collec-
tion (e.g. island States in the Pacific region). Many of
these States have their control problems exacerbated by
civil strife or war (El Salvador, Kampuchea). At the same
time their concern for the national cultural heritage is
shared by many Western European States which, though long
the recipients of the cultural heritage of other States,
are anxious to protect their own. The interest of the
European States may be less clearly to preserve some evi-
dence of local culture than those smaller States whose
cultural treasures are less numerous, but even these great
"collector" States, such as Britain and France, now have
export restrictions and concernhas been shown in the United
 2.

States: by legislation to protect Indian artifacts and

also by private individuals concerning the export of modern
American art.

[OO3] Transit countries. This term similarly covers a

wide variety of situations. It includes, obviously, the
countries of the big auctioneers, dealers and restorers
Fed. &p. 04
e.g. Britain, France, Germany, Switzerland and the United
A
States. Less obviously it also covers States through
whose territories the objects are transported e.g. a number
of South American States, a number of African States, and
Australia, all in respect of objects coming from their
neighbours.

10041 Importing states. This description clearly refers

primarily to Xorth America and Europe where the main col-
lectors are but other States may, though primarily "export-
ing" States, find themselves also in this position. Thus
some South American States, South Africa, Australia, Canada
and New Zealand, have some wealthy collectors who import
works of European origin, and also objects more recently
fashionable (traditional art from other areas).

[005] Usefulness of this distinction. Not only do these

categories overlap; they are rather inappropriate for legal
purposes. The reason is that much cultural property leg-
islation has been modelled on certain basic examples e.g.
 3.

much legislation world-wide is modelled on the French

system: even though the problems of the countries adopt-
ing that legislation are rather different from those of
the model.
 4.

iOO6) EXPORTING COUNTRIES. The control of "exporting"

countries over the removal of cultural goods from their
territory is exercised in many ways. Sections 10061 to
[loo] are designed to describe some important examples
of the ways in which legislative and administrative con-
trol has been exerted.

[007] THE DEFINITION OF CULTURAL PROPERTY FOR EXPORT

CONTROL. The 1970 UNESCO Convention on the Means of

Prohibiting and Preventing the Illicit Import, Export

and-Zr*sfer of Ownership of Cultural Property includes

the following clause:
For the purposes of this Convention, the
term "cultural property" means property
which, on religious or secular grounds,
is specifically designated by each State
as being of importance for archaeology,
prehistory, history, literature, art or
science and which belongs to the following
categories:
(4 Rare collections and specimens of
fauna, flora, minerals and anatomy,
and objects of palaeontological
interest;
(b) Property relating to history, includ-
ing the history of science and
technology and military and social
history, to the life of national
leaders, thinkers, scientists and
artists and to events of national
importance:
(c) products of archaeological excavations
(including regular and clandestine)
or of archaeological discoveries;
td) elements of artistic or historical
monuments or archaeological sites which
have been dismembered;
 5.

(e) antiquities more than one hundred

years old, such as inscriptions,
coins and engraved seals;
(f) objects of ethnological interest:
(g) property of artistic interest, such
as:
fi.1 pictures, paintings and draw-
ings produced entirely by
hand on any support and in
any material (excluding indus-
trial designs and manufactured
articles decorated by hand):
(ii) original works of statuary art
and sculpture in any material;
(iii) original engravings, prints and
lithographs;
(iv) original artistic assemblages
and montages in any material;
(h) rare manuscripts and incunabula, old
books, documents and publications of
special interest (historical, artis-
tic, scientific, literary, etc.)
singly or in collections;
(i) postage, revenue and similar stamps,
singly or in collections;
Cj> archives, including sound, photographic
and cinematographic archives;
(k) articles of furniture more than one
hundred years old and old musical
instruments.

[008] Purpose of the definition. The 1970 UNESCO Conven-

tion definition was specifically devised with the regulation
of export in mind. There is no reason why cultural property
should not be defined in one way for that purpose and in
another way for some other purpose e.g. the 1956 UNESCO
Recommendation on the International Principles Applicable
to Archaeological Excavations provided that the criteria for
the obligation to declare a find of cultural property should
be very much wider than the criteria used for issues relating
to the preservation of such property. Some States have in
 6.

fact used different definitions for export control from

those used for other protective purposes (Poland). This
is not uncommon for States with classification systems
(see [013] below).

[009] Definition practice. Definitions of cultural

property generally conform to one of three basic systems -
enumeration, categorization and classification.

[OlOl Enumeration. An enumeration system mentions ,speci-

fically each item that it is proposed to protect. Its
protection of mentioned items is hard to challenge, but
it is ineffective for items not brought to the legislator's
attention (possibly because not then created or discovered)
though of a similar nature. For this reason it is common
to insert in the definition a general phrase intended to
embrace all other items of the class concerned. The enumer-
ation system is widely used in English language legisla-
tion (jurisdictions with law based on the English common
law). For historical reasons the rules of judicial inter-
pretation have so developed as to encourage the most
specific legislative drafting. This practice applies to
all legislation and could hardly be changed with respect
to cultural heritage legislation. in example may be taken
from the legislation of Gambia:
 7.

- "ethnographical article" meaning

(a) any remains of early settlement,
or colonization, or
(b) any work of art or craftwork,
including any statue modelled
clay figure, figure cast or wrought
in metal, carving, housepost, door,
ancestral figure, religious mask,
staff, drum, bowl, ornament, uten-
sil, weapon, armour, regalia, manu-
script or document, if such work -
of art or craftwork is of indigen-
ous origin and -
(i) it was made or fashioned
,before the year 1937; or
(ii) is of historical, artistic,
or scientific interest, and-
is or has been used at any
time in the performance, and
for the purposes of, any tra-
ditional African ceremony:
Provided that in the case of
a dispute as to whether any
particular article does or
does not fall within the tern
of definition the decision of
the Minister shall be final.

[Oil) Categorization. A categorization system uses a

very general description to establish what is included.
Some systems are much more concise than others. An ex-
ample is the definition by Mauritania:
Moveable and immoveable property which has
national interest because of pre-history,
pre-Islamic history, philosophy, art and
archaeology which exists on or in the soil
of the property of the public and private
domain of the State,of territorial units
or of public institutions.
Art. 1 of the Senegalese legislation speaks of:
 8.

Moveable or immoveable goods, whether pub-

lic or private, including natural monuments
and sites as well as former resting places
or workings whose preservation or conserva-
tion is of historic, artistic, scientific,
legendary or scenic interest.

[012] Classification. In a classification system nothing

is included until a specific decision is taken to that
effect by a designated person. Once that decision is
taken, a whole range of protections (including export
prohibition) attach to the item concerned. This'scheme
of cultural protection legislation has traditionally been
used by France and jurisdictions whose law has been
patterned on that law (e.g. Senegal, Algeria, French Poly-
nesia). The classification system generally ensures a
high level of protection for listed objects, but it often
provides little or none for unlisted objects. This has
led to a number of States providing for a provisional
registration system where for a period of between 6 months
(Chad) and 10 years (Algeria) the object is given the
same protections as a classified object while it is being
considered whether or not the object should be classified.
Sometimes such protection is also extended to items which
are not even listed, such as items found by'chance or
excavated clandestinely (Mauritania, Senegal), and objects
described generally as in a categorization definition.

[013] Advantages and disadvantages. As far as export

control is concerned all these definitional methods have
 9.

advantages and disadvantages.' The nomenclature in an

enumerative definition may be precise, but where it refers
to something known to one particular culture alone, this
may not be enough to enable customs officers in other
countries to recognize the object. The categorization
system should cover all the objects whose export it would
be desirable to control, but may be too vague to be of
clear application. What, for example, is "an object of
archaeological interest" (Singapore, Zambia)? The phrase
"object of antiquity" was held by a U.S. iudge not to
include masks made by an Indian medicine man about four
years before, despite evidence given by an anthropolo-
gist that an "object of antiquity" could include something
that was made just yesterday if it related to religious
or social traditions of long standing (U.S. v. Diaz 499 F.2d
113 (1974)). The classification method has the advantage
of normally providing an accurate description of each listed
object in sufficient detail to give investigating officers
in any jurisdiction an adequate starting point for their
investigation. On the other hand it requires a cultural
authority with plenty of resources and expertise. It is
also possible that there exist items to which the author-
ities do not want to extend the special protections of
classification, but which they feel, nonetheless, should
be subject to export control. Thus Algeria, France, Senegal
 10.

and Zaire prohibit the export of classified goods.

France in addition subjects objects of national historic
or artistic interest to a system of export licensing,
while Zaire also subjects any antiquity of Zaire to
export approval. Senegal provides that:
The exportation of objects which have
not yet been registered on the list
proposed for classification or classified
because their existence or their possessor
was not known,butwhich are of real
significance in the domains of national
history, ethnology or African art, exclud-
ing objects of recent origin made by
craftsmen, is subject to the prior
authorization of the appropriate adminis-
trative authority. (Art. 11)

10141 Other criteria - aqe. Many jurisdictions link

one of the above definitional systems to some addition-
al criteria such as the age of the object e.g. before
1700 A.D. (Israel), before 1850 (Cyprus), before 1894
(Brunei), before 1918 (Nigeria). Certain others use
the "moving date" system as recommended in the 1956
UNESCO Recommendation (Art. 3(a)), e.g. more than 30 years
old (Federated States of Micronesia), 40 years old (Kuwait),
50 years old (Indonesia), 100 years old (Iceland), 150
years old (Belize), 500 years old (Yemen). In many cases
a discretion is given to the authorities to include items
of more recent origin where their importance warrants it.
Iraq, for example , protects objects more than 200 years
old, but provides that:
 11.

The Directorate shall-be entitled to con-

sider as antiquities moveable and immoveable
objects which are less than two hundred years
old, if the public interest requires its pro-.
tection, due-to its historical; national,-
religious or artistic value.
Some States expressly exclude the works of living artists
(Honduras, India, Mexico). This raises a special issue
for consideration: clearly it is' in the artist's inter-
ests that his works be put on the open market and fetch
the highest price. Once the artist is dead, however, he
can reap no benefit from the value of his creation, and
at that stage the State may feel the need to try and pre-
serve some of his work for the national cultural heritage.
Luxemburg restricts export control to items more than 100
years old or those whose makers have been dead more than
50 years.

[015] Other criteria - local origin. A number of States

have limited protection to objects of local origin e.g.
Brazil (but including former coloniale.g.Portuguese
items). Venezuela, on the other hand, expressly covers
in its legislation all historic.and artistic monuments
and other works of art which are found in the territory
of Venezuela or which.are imported into the country, irre-
spective of ownership. The authorities may allow an art-
istic work into the country with permission to re-export,
but if it remains in the territory for ten years, it may,
 12.

'be incorporated into the historic and artistic heritage

of the nation. Yet another solution is to exempt from
control objects brought in from another country, provided
they are declared on entry (Sudan).

[0161 Other criteria - administrative discretion. Many

States have authorized the' relevant authorities to add
additional items to those protected by the legislation
e.g. Syria, India. Such a power will be important, if a
restrictive form of definition has been used, to prevent
the loss of objects which are of importance to the nat-
ional heritage and would otherwise be unprotected, Thus the

law in Sierra Leone protects ethnographical articles

which are defined as meaning:
(a) any remains of early European settle-
ment or colonization, or
(b) any work of art or craftwork, etc., in-
cluding any statue, modelled clay figure,
figure cast or worked in metal, carving,
housepost door, ancestral figure, reli-
gious mask, staff, drum, bowl, ornament,
utensil, weapon, armour# regalia, manu-
script or document, if such work is
craftwork of indigenous origin and
(i). was made or fashioned before the
year 1937; or .
(ii) is of historical, artistic or sci-
entific interest and is or has been
used at any time in the performance,
and for the purpose of, any tradi-
tional African ceremony.
The decision of the competent Minister is final as to

whether any particular article does or does not fall

 13.

within the terms of the definition (s. '2). In this

connection it is interesting to note that the Committee

of Governmental Experts which examined the draft of the
1970 Convention agreed that the Convention definition
should avoid any subjective criterion for assessment in
order to simplify the task of the customs services.
Such a provision, therefore, though useful for other
protective purposes; may be of little use in the control
of export and import.'

[0171 Inadequacy of definition. Many national States

have definitions which are not adequate to cover all the

cases where export should be controlled. Much early
legislation on the cultural heritage was concerned with
"antiquities", and States whose legislation is based on
some of the earliest laws in this field continue to con-
centrate on this aspect e.g. Jordan. In this connection
it should be noted that the 1956 UNESCO Recommendation
on International Principles Applicable to Archaeological
Excavations recommends that (Art. 3(a)) :
. . . the criterion based on preserving all
objects originating before a certain date
should be abandoned, and replaced by one
whereby protection is extended to all ob-
jects belonging to a given period or of a
minimum age fixed by law.
Those States having very wide general definitions (see
10111 above) may cover everything, but be difficult of
 14.

application - there may be considerable doubt as to

whether an object is one whose:
. . . conservation is in the public inter-
est because of prehistoric, archaeological,
geological, artistic or scientific inter-
est. (Chad)
especially where thereisan is;ue of controversy between
contending parties in a. foreign jurisdiction. The
Canadian authorities have drawn up certain guiding prin-
ciples in order to determine whether or not an object
should be included within the broad definition set out
in the legislation for export control. If a definition
is so wide as to leave administering authorities in other
countries in doubt as to its application, then such guiding
principles should probably also be made available to the
other State.

[018] Over-inclusive definitions. Turkey, which has

relatively recent and thorough legislation on the cul-
tural heritage,has tried to avoid such problems by using
a broad general definition followed by a very detailed
enumeration of specific items. The Turkish law provides
that:
Every . . . object . . . on the earth, under
the earth or in the sea, dating from pre-
historic or historic times, of scientific,
cultural, religious or aesthetic interest
-0.
is an antiquity. Such a provision, unless very carefully
drafted, may include objects of value brought into the
 15.

territory by visitors as their personal property. It is

important therefore not to seek too wide a definition.

[019] Harmonization of definitions. It may seem to those

seeking to control illicit traffic in cultural property
that it would assist if States were to use the same kind
of definition. While much could be done to improve some
definitions, a high degree of conformity cannot be ex-
pected. States are primarily concerned with the national
cultural heritage, and their emphasis will naturally reflect
this. African and Pacific States, for example, are often
especially concerned with native craftwork and objects
used for ritual purposes, Mediterranean States with
antiquities, European'States with art-treasures. Some

of the specific terms used in enumerative definitions

may be known only to anthropologists or other specialists
in the field e.g. French Polynesia prohibits the export
of "pierres de marae", "omore" and "ihe". On the other
hand the 1970 UNESCO Convention provides (Art, 4) that:
The States Parties to this CWWentiOn
recognize that for the purpose of the
Convention property which belongs to
the following categories forms part of
the cultural heritage of each State:
(a) Cultural property created by the
individual or collective genius
of nationals of the State concerned,
and cultural property of importance
to the State concerned created with-
in the territory .of that State by
foreign nationals or stateless per-
sons resident within such territory:
 16.

(b) 'cultural property found within the

national territory:
(cl cultural property acquired by arch-
aeological, ethnological or natural
science missions, with the consent
of the competent authorities of the
country of origin of such property;
(d) cultural property which has been the
subject of a freely agreed exchange:
(e) cultural property received as a gift
or purchased legally with the con-
sent of the competent authorities of
the country of origin of such property.
It will be seen from the above discussion [009] that the
laws of some States do not yet conform to those require-
ments.

[0.20] The inventory system. Art. 4 of the 1970 UNESCO

Convention requires each State party to the Convention:
. . . to set up within their territories
one or more national 'services . . . for
the protection of the cultural heritage,
with a qualified staff sufficient in
number for the effective carrying out of
the following functions:
. . .
(b) establishing and keeping up to date,
on the basis of a national inventory
of protected property, a list of
important public and private cultur-
al property whose export would
constitute an appreciable impoverish-
ment of the national cultural heritage.
. . .

This requirement should cause little difficulty to those

States whose cultural heritage protection law is already
based on a classification system (see [012] above). It
may be difficult to meet for countries which do not have
 17.

an inventory system but do have large collections of

moveables. One method of meeting this requirement would
be to use the records of existing collections (public,
semi-public, or private) as the basis of such an inven-
tory. Such a system already exists in Zaire. It may be
that a national museum or national body of cultural ex-
perts could act as the co-ordinator of the lists so
produced. To this basic inventory other objects could then
be added. The National Antiquary of Iceland is required
to officially record field antiquities and also ecclesias-
tical artifacts preserved in churches.

CO211 Breadth of use of the inventory svstem. A system

of classification, registration or listing is now in use
in about half the countries which control export. By
means of the suggestion in 10201 it should be possible
to substantially increase this number. UNESCO may be
able to assist with advice (a) on the setting up of such
inventories (b) on the proper degree of detail to be used
in cataloguing such collections so that they reflect both
proper museology practice and also are adequate for the
purposes of exchange of information for export control.

[022] Private collections. Where it is desired to in-

clude the material in private collections for export
control it may be necessary to provide some incentives
for collectors to reveal their holdings. Since many
 18.

holdings may be being used as tax shelters, tax and

other financial incentives may be appropriate (see
LO991 below). The State should also point out to
private collectors that detailed descriptions of objects
in the national inventory will serve to increase their
protection from theft and fraudulent appropriation.
Consideration could also be given to keeping the informa-
tion about private collections confidential, to be
revealed only if it is required to identify objects
stolen or illegally exported from other jurisdictions.
A State may require private owners to register certain
types of cultural property e.g. Romania. If they do not
register them, their ownership is no longer recognized
and they are subject to seizure by the State. Saudi
Arabia requires private owners of moveables to keep a
record of their holdings. Iraq, Libya and Tanzania re-
quire privately owned moveables to be registered with the
authorities.

[023] ORIGIN OF ILLEGALLY EXPORTED GOODS. No study of

illicit export would be complete without noting the strong
connection between the export and the often illegal ob-
taining of possession of the goods. A very large part
of goods illicitly exported is derived from clandestine
excavation/or theft. What is derived from trade has
frequentlyevadedcontrols of that trade (see [0491-[OS21
below). Recent notorious cases of illicit export have
 19.

involved illegal excavation also (see Hollinshead case

discussed below [136]).

[024] CZandestine excavations. The high prices paid on

the international art market fuel the demand for anti-
quities and make the organization of clandestine excava-
tion an economic proposition. The most obvious damage
done by clandestine excavation is destruction of the
scientific value of the find because it has been wrenched
out of context and can therefore be of no use in-compar-
ative dating, style assessment or relation to other ob-
jects in the site: destruction of the site itself by
inexpert excavation, non-recording and non-publication;
damage done to the cultural objects themselves by ,inex-
pert excavation and lack of conservation facilities; loss
of cultural history by loss, destruction, and disappearance
of objects into non-accessible private collections; non-
maintenance, non-recording and non-publication of the find
itself. To this some would want to add the moral wrong of
large profits being made by individuals from the non-
renewable community resource of the cultural heritage.

[025] International prohibition. The UNESCO Recommenda-

tion on International Principles Applicable to Archaeolo-
gical Excavations (New Delhi, 1956) provides that all
UNESCO members should take all necessary measures to pre-
nt clandestine excavations (Art. 29). The European
 20.

Convention on the Protection of the Archaeological Heri-

tage, 1969, to which 15 European countries (Austria,
Belgium, Cyprus, Denmark, France, Federal Republic of
Germany, Greece, Italy, Liechtenstein, Luxemburg, Malta,
Spain, Sweden, Switzerland, United Kingdom) are parties,
requires States parties to prohibit and restrain illicit
excavations (Art. 3).

[026] National protection of archaeological sites. Many

exporting countries have difficulty in adequately controll-
ing excavations at sites of archaeological importance.
Countries like the Sudan, Guatemala and Honduras which
have- great archaeological riches in areas which are sparsely
populated and difficult of access may also have limited
resources. In many exporting countries where the local
population has little opportunity for economic advance-
ment, the prices which can be offered by illicit dealers
and smugglers may mean the difference between poverty
and wealth. Where sites are open to visitors, "souvenir-
ing" of objects is often difficult to prevent: yet a
State may need the economic benefits of tourism and be
reluctant to discourage visitors.

[027] Control measures. Nonetheless exporting countries

should take whatever legislative steps can be taken to
control clandestine excavation. A starting point would
be an assertion of ownership over archaeological sites
 21.

and'objects (see‘[0461-10481 below). All States have it

within their power to ban unauthorized excavation on
public property: this step has been taken by many legis-
latures, including component states of the United States
(where excavation onlprivate land is not often subject
to control). Many other States regard it as perfectly
proper for a State to encumber private property with
strict controls in the interest of the whole community:
thus Austria, the United Kingdom, and the component states
of the German Federal Republic forbid excavation on private
land without regarding that as an improper encroachment on
property rights. A number of jurisdictions expressly
include excavations by a private owner on his own land within
the prohibition of excavation (Honduras, Iraq, Jordan,
Malaysia, Saudi Arabia, Sudan, Uganda). There is a direct
prohibition of any unauthorized excavation in many juris-
dictions (e.g. Brazil, Ecuador, Ethiopia, Fiji, Ghana,
Honduras, Libya, Mexico, Nigeria, Pakistan, Jordan, Kenya,
Peru, Uganda). Where such a prohibition does not exist,
a more general obligation to report finds, to leave un-
disturbed and not to damage or destroy (e-g. Maldives,
Zaire) may well cover the clandestine excavation. Other
sorts of oontrols may also render the clandestine excava-
tion more difficult. Israel forbids the use of a metal
detector in an archaeological zone.
 22.

[0283 Improvement of control. Various measures have

been suggested to improve control. Heavier penalties
have been proposed: most States provide for fine or
imprisonment or both for persons convicted of clandes-
tine excavation, but there is great variety in the sev-
erity of sentences. Some States expressly provide for
confiscation of objects clandestinely excavated (Bahrain,
Brazil, Brunei, Iraq, Republic of Korea, Pakistan) and
others forthe forfeiture of excavation implements also
(Bahrain, Brazil, Iraq, Grenada). None of these penalties,
however severe, will deter the clandestine operator un-
less the risk of detection and prosecution is high.

[029] Education and public information. In densely pop-

ulated areas where there is a strong community commitment
to preservation of the cultural heritage - as in China -
it may be difficult for clandestine excavators to operate.
Education programmes for the local population in the value
of the cultural heritage, and of all peoples in the enor-
mous damage done by illicit excavation and export, is an
essential step in enforcement, though it may be relatively
slow to take effect. (But consider the great changes in
attitudes to museum acquisition over the last two decades.)

[O30] Creation of special zones, Finally some jurisdic-

tions have found it helpful to create areas of special
 23.

legislative protection. Such archaeological zones exist

in Botswana, China, Cuba, India, Israel, Louisiana, New
Zealand, Norway, Peru, Saudi Arabia and Baden-Wurttemberg.
Their effect is to subject any activity, but especially
research, digging and construction, to special controls.
Special zones have oqten been created in relation to the
underwater archaeological heritage (Australia, United
Kingdom, Louisiana, Florida).

[031] Claims for international assistance. Where a country

has an especially difficult problem of site pillage and
clandestine excavation it may claim the assistance of
other countries. According to Art. 9 of the.1970 UNESCO
Convention:
Any State Party to this Convention whose
cultural patrimony is in jeopardy from pill-
age of archaeological or ethnological mat-
erials may call on other States Parties who
are affected. The States Parties to this
Convention undertake, in these circumstances,
to participate in a concerted international
effort to determine and to carry out the nec-
essary concrete measures, including the con-
trol of exports and imports and international
commerce in.the specific materials concerned.
Pending agreement each State concerned shall
take provisional measures to the extent feas-
ible to prevent irremediable injury to the
cultural heritage of the requesting State.
Whether such assistance will be rendered where the requested
State is not a party to the Convention cannot be foreseen.

10321 Theft. A good deal of material which is illegally

exported has been stolen, some of it from private owners,
 24.

some from public institutions. In either case there is

unlikely to be an application for an export license. Some
of it is stolen specifically for export e.g. the goods
are described to a prospective buyer abroad and, if he
shows interest, stolen for sale to him (cf. Burnham, 1975,
46 and the Hollinshead case discussed below at [136]).

[033] Preventive measures. It is impossible to protect

all valuable cultural goods from risk of theft. Objects

in private collections may not be fully catalogued, re-

corded or photographed and be therefore difficult to
_ .~- --
identify. Unless it is a country which requires objects
to be registered ([022] above), the State may not even
know of their existence. The problem of pieces kept in
museums is rather one of security - small provincial
museums are particularly at risk, but even the largest
metropolitan ones have suffered daring thefts. The most

serious problem of all concerns objects in the hands of

religious institutions - many churches have virtually no
security and sometimes little idea of the value of the
cultural treasures held (cf. the case described in Leitch,
1968, where a daring thief removed valuable sixteenth
century crystal prisms from the chandeliers in a Poitiers
cathedral, replacing them with worthless ones and the
theft was not noticed). Belgium has undertaken an emergency
photographic inventory of all the moveable objects in all
the churches of the country, to prevent their circulation
 25.

on the art market (Burnham, 1975, 82). The 1970 UNESCO

Convention requires importing States to prohibit the

import of cultural property stolen from a museum or a
religious or secular public monument or similar in-
stitution in another State Party and to assist in its
recovery. This provision is discussed below at [124].

[Q341 Improvements in security. Scotland Yard now has a

Special Art Squad to advise private collectors on security

measures. Religious 'institutions especially may need to be
given help on the recording and protection of art treasures.
A special problem here is that some objects are items of
veneration which need to be accessible to the worshippers -
consider the case of the Sivapuram Natarja taken from a
temple in India, now in a private collection in the United
States (the history of its acquisition is given in Burnham,
1975, 79). National States need to observe the provisions
of the 1978 UNESCO Recommendation for the Protection of
Moveable Cultural Property and the technical standards
recommended by national and international security organiza-
tions. Despite the increasing sophistication of security
equipment (electronics, etc.), collections will still be at
risk because museums cannot afford sophisticated systems,
because such systems may cause inconvenience to legitimate
activities and are switched off by their administrators, or
simply because curatorial staff (through boredom or insuffic-
iency of numbers) are not sufficiently alert. (See the dis-
cussion of these problems in Chatelain, 1976, 27-45.)
 26.

10351 Identification of stolen property. This is an

important issue, which applies equally to illegally ex-
ported property (see [062] below). It is particularly
important where objects are claimed to be the property .
of a State although they had never been reduced into
the possession of the Government and were its property
only by virtue of a wide-ranging cultural heritage law.
The State may not, in fact, have even known of their
existence until brought to its attention outside the
State. Note that over 40 States automatically vest all
antiquities discovered after a certain date in the State.
In the case of U.S. v. McClain (545 F. 2d 988) 1977, re-
hearing denied 551 F. 2d 52) the defendants had sought to
sell a truckload of Mexican pre-Columbian art to officials
of the Mexican Cultural Institute (run by the Mexican
government) in San Antonio (Texas). They were prosecuted
under the U.S. National Stolen Property Act. Although
initially successful the charge was dismissed on appeal on
the ground that antiquities vested directly in the Mexican
Government only after 1972, private ownership of antiqui-
ties found before that date being preserved. Because it
was not proved that the objects had been excavated since
that date, it was held that they could have been legally
acquired from private owners and the charge was dismissed.

[036] Ownership. This case raises clearly the problem

of proof of ownership also. Although in some cases public
 27.

ownership of 'stolen objects may increase the chance of

their recovery in the courts of a foreign jurisdiction
(see King of Italy v. Medici, discussed below [133]), in
other respects it may be harder to prove ownership (see
U.S. v. McClain discussed above, and also the argument of
Macrory concerning this case in Macrory and Feldman, 1972,
203. These problems are discussed below in relation to
the importing States [lSO].

[037] Notification of theft or loss. Some jurisdictions

have made specific provision for the notification of theft
or loss (or both). Such provisions are in force in Haiti,
Republic of Korea, Saudi Arabia, Zaire. This kind of re-
quirement ensures that cultural authorities are made aware
of a loss to the national cultural-heritage, even where the
object was in private hands, and enables them to take
further steps for its recovery.

[038] Publicizing thefts. If stolen property is to be

recovered, especially if it has been sent abroad, the
theft must be publicized. It is difficult for cultural
authorities to be alert for objects which they do not
even know are missing. Publicizing a theft may also have
important implications for the success of litigation in a
foreign jurisdiction seeking return of a stolen object,
since in many jurisdictions a bona fide purchaser for
value may-be protected. If the theft has been widely
 28.

publicized, it will be easier to claim that the purchaser

was not in good faith (see [144] below). Some museum
professionals appear to oppose media coverage of thefts,
since they feel this leads to more thefts and alienates
donors: they think that publicity should be restricted
to professional journals. The same kind of argument
could be made about publicizing many kinds of crime -
nonetheless it is felt necessary in order to catch the
criminal, and in the case of cultural property, to assist
in recovery of the goods. Apart from normal media use,
the ICON Bulletin and INTERPOL should be used to publicize
thefts.

[039] Publicizing 'acquisitions. A prior step which is

perhaps not subject to the same disadvantages is for museums
to publicize their ownership of important pieces. A buyer
of "Blue Poles" would need to see properly executed in-
struments of transfer from the Australian National Gallery
before he could claim "good faith", since its ownership
is so notorious. It is in the interest of an institution
to see that it5 best pieces are publicized in this way
and thus to some extent deter thieves.

[040] Checking provenance. If all museums and other

cultural institutions adopt as standard practice a policy
of demanding provenance, it will gradually become harder
0
to assert good faith if a purchaser has acted on a "no
 29.

questions asked" basis. Dealers should also be required

to check provenance or else be liable to the original
owner (as they are in France, see [112] below).

co411 Inventories. If museums and similar institutions

have well-documented inventories of their holdings this
will greatly improve their chances of identifying stolen
property [035], proving ownership [0361, publicizing
thefts 10381 and seeking international aid in the return
of stolen goods [0331. It will also assist generally in
export control 10201 to [022]. The importance of inventories
for identification has also been emphasized in a study of
the control of theft of cultural property in the European
community (Chatelain, 1976, 46-57).

10421. Creation of .special offences. In most jurisdictions

theft of cultural property is treated in the same way as
any other theft. A few criminal codes have special provi-
sions e.g. in Thailand it is an offence to steal a Buddhist
statue or any religious object highly respected by the
public or kept as national property (s. 335 Thai Criminal
Code). In El Salvador there are specific offences in the
penal code relating to violation of local or departmental
laws concerning the creation, disposal and preservation
of artistic, historic and archaeological property and
relating to illegal and clandestine traffic in antiqui-
ties which are protected items (Arts. 260 and 261 Penal
 30.

Code) but implementing legislation had (at least until

July 1980) not been adopted to enable full use to be made
of these provisions. Mexico has created four specific
offences in its Federal Act on Monuments and Archaeolog-
ical, Artistic and Historic Zones 1972: those of taking
advantage of an official position or archaeological per-
mit to dispose of a moveable archaeological monument for
one's own benefit (Art. 48); transferring ownership or
trading without a permit (Art. 49); having in possession
illegally an archaeological monument (Art. 50); and tak-
ing possession of an archaeological, historic or artistic
monument without the consent of the person who has the
legal right of disposal (Art. 51). The Sudan has made it
an offence for any person to be found "in possession of a
moveable antiquity which he is unable to show that he
obtained lawfully" (s. 20).

[043] The draft European Convention on offences against

cultural property provides for mandatory implementation
of the Convention procedures in cases of theft of cultural
property, appropriation of cultural property with violence
or menace and the receiving of cultural property pursuant
to one of those offences. A State party may unilaterally
extend the application of the Convention to other offences,
including unlawful exportation of cultural property. The
creation of special offences forms the basis of extended
jurisdictional rules and special procedures for recovery
 31.

and return of cultural property, as well as for prosecu-

tion. (In making this summary the authors have had to
rely on secondary sources since the text of the draft
Convention was not available to them.)

[044] Responsibility of custodians. 'The Mexican law

mentioned above [041] puts a special responsibility on
guardians to protect national cultural property. Romania
also has a provision of this kind: there is a duty on
State entities, religious groups and private persons
holding items of the cultural heritage to ensure their
protection and security. In the Republic of Korea the
Minister may specify particular means of protection.
Where antiquities are vested automatically in the State,
there may even be a special incentive programme for offi-
cials to report the finding of objects which are being
concealed, e.g. in Syria rewards of between 10 and 20%
of fines levied may be accorded by the authorities to
informers, police, curators or antiquities officers who
have collaborated in the application of confiscation
regulations.

10451 Penalties and sanctions. There is great variety

in the degree of severity with which theft of cultural
property is treated. As we have seen (10411 above) in
most cases it is treated as any other type of theft.
It is therefore subject to some of the same problems
 32.

as other "white collar crime" i.e. the educated, well-

to-do middle class criminal is often treated by magis-
trates and judges much more leniently than the "blue
collar" criminal. The thief of cultural property, and
certainly the person who directs the operation, who may
employ others to perform the actual taking, is often
well-educated and discriminating. Consider the case
of the famous French "chateau gang", which between 1961
and 1965 stole "belle epoque" furniture and other cul-
tural items worth over $8 million dollars (conservatively
assessed). Richier, the man directing this operation was
a doctor, a self-taught expert on French furniture of
the period, who would personally survey the collection
to be raided and indicate the items to be taken. When
convicted he was given a suspended sentence of five
years, which means that he could avoid serving any if
he kept out of further trouble. The total inadequacy
of such a penalty compared to the loss to the cultural
heritage (most of the loot has never been recovered)
suggests that either special offences in regard to cul-
tural property with indicated appropriate sentences
should be made, or else that a strong education campaign
of law enforcement and judicial officers should be under-
taken to ensure that the gravity of the offence is under-
stood. (This case is the subject of the book, Leitch,
1968.)
 33.

CO461 Severity of penalty. Increasing the severity of

the penalty (fine, imprisonment or both) is not necess-
arily the best deterrent of theft. While clearly some-
thing needs to be done, opinion among criminologists
generally is rather to the effect that the severity of
penalty-is not directly effective in deterring crime -
no criminal intends to get caught. The penalty, however,
should at least be sufficient to ensure that the criminal
does not make a profit on his crime, although he has
been convicted .and sentenced e.g. by such a minor fine
or short period of imprisonment that it is still in his
interests to conceal the cultural object because its
value far exceeds his present inconvenience.

[047] Detection. None of these measures (stronger penal-

ties, special offences, improved identification of valuable
items, etc.) will have much effect unless there is a sound
chance of the crime being detected and the criminal pursued.
such is the volume of art crime that two major police
forces have set up special art crime sections: Scotland
Yard in 1968 and the New York City Police Department in
1971 (Adams, 1974). INTERPOL'has its own specialized
operations in this area: any national police department
should consult it on matters where there is likely to be a
non-national dimension.

10481 Trade. The need to control clandestine excavation,

 34.

theft, forgery and fraud and illicit export has led a

number of States to control trade in cultural objects,
especially antiquities. According to Art. 10(l) of the
1970 Convention States Parties should:
oblige antique dealers, subject to penal
or administrative sanctions, to maintain a
register recording the origin of each item
of cultural property, names and addresses
of the supplier, description and price of
each item sold and to inform the purchaser
of the cultural property of the export pro-
hibition to which such property may be sub-
ject.

10491 Prohibition of trade. Some States have simply

prohibited trading in antiquities (Iraq, Jordan, Thai-
land). Libya forbids trading in antiquities and requires
notification of other transfers of ownership.

[OS01 Notification of transfer. Some States require to

be notified of sale or transfer of protected items (Benin,
Brazil, Cameroon, Libya, Poland, South Africa, Senegal,
Taiwan, Yemen). The penalty for failure to give notice
may even be nullity (Haiti, Bangladesh). In a number of
cases this will give the State an opportunity to exercise
a right of preemption (Cameroon, Senegal). Such provi-
sions apply in some other countries .only in the case of
sale for export (Uruguay and see [067] below).

[OS11 Licensing of dealers. Certain other States control

l

commercial dealing in antiquities by licensing procedures.

In a few cases any transaction with a protected item
 35.

requires a licence (Poland, Sudan, Tanzania, Uganda); In

most cases States require dealers and traders to be licensed
(France, Ghana, Lebanon, Kuwait, India, Israel, New Zealand,
Nigeria, Pakistan, Philippines, Syrian Arab Republic).
Such provisions may antedate the 1970 Convention but are
reflected in its Art. 10(a) whereby States parties under-
take:
To restrict by education, information and
vigilance, movement of cultural property
illegally removed from any State Party to
this Convention and, as appropriate for
each country, oblige antique dealers, sub-
ject to penal or administrative sanctions,
to maintain a register recording the o&.-i
gin of each item of cultural property,
name and addresses of the supplier, des-
cription and price of each item sold and
to inform the purchaser of the cultural
property of the export prohibition to
which such property may be subject.
Detailed provisions of this kind exist in France, India,
Lebanon, New Zealand and the Syrian Arab Republic. In
Syria, for example, an annual permit is issued and this
enables the dealer to trade in registered antiquities
and other objects, provided the acquisition of the latter
is notified to the authorities so that the right of pre-
emption can be exercised. The dealer is required to
operate in the nominated place, todisplay his authority
to do so, to keep registers of the antiquities in his
possession and to display a notice in English, French
and Arabic stating that export of antiquities is subject
to authorization. The authorities may inspect the premises
 36.

and the registers at any time. The dealer is specifi-

cally forbidden to encourage clandestine excavations.
If there is a breach of these conditions the licence is
annulled.

[OS21 Registration of collectors. New Zealand has an

interesting provision concerning the registration of
collectors. It is an offence to sell any artifact other
than to a registered collector, public museum, licensed
auctioneer or licensed second hand dealer. A registered
collector may only sell his collection to certain speci-
fied persons, and has to notify changes in his collection
and its location.

[OS31 Illegal trade. Whether trade is prohibited or

regulated, it is impossible to prevent the illegal alien-
ation of objects. Even where the law is rigorous, and
real efforts are made to enforce it, as long as prices
in the international art market remain high there will
be evasion of the law. The volume of finds in many
countries makes complete control unattainable. See on
this the discussion in Burnham, 1975, esp. 115-119 on
illicit dealing in Turkey: even relatively severe
penalties, such as deregistration, do not deter the
dealer from having a "back room" and publicity on dis-
reputable dealers appears to have very limited effect.
 37.

[OS41 TYPE OF EXPORT COTJTROL. Once it is decided what

kind of objects are subject to export control, it has
then to be decided what kind of control this should be.
There are several different forms of control in use.

[OS51 Prohibition. Prohibition of export of protected

items is provided for in many jurisdictions. Most States
which prohibit export have some provision for exceptions
e.g. for exchange or exhibition (Romania, Senegal), by
executive action in the public interest (Czechoslovakia,
Senegal) or simply temporarily (Nicaragua, Malagasy
Republic, Poland). Yemen allows the exchange of moveable
antiquities in Arab and foreign countries provided they
are of secondary importance and similar objects exist
in the museums. New Zealand will permit exemption of
certain classes of antiquities from the prohibition
where the relevant authority is satisfied that:
(a) Sufficient examples of that class or
those classes are held in public own-
ership in New Zealand: and
(b) It would not be contrary to the pub-
lic interest to exempt that class or
those classes.
(Art. 5(l) Antiquities Act)
Prohibition has certain disadvantages as a method of export
control: it may make objects originating in the country
concerned so rare that their value on the international
market increase,=, enormously and thus encourages the art
smuggler to take greater risks. It is only really workable
 38.

in countries which have tight border controls and no

great volume of international traffic (e.g. many Eastern
European States would probably fall into this category) 0
In countries where the wages of. government officers are
low it may encourage corruption. And finally, in States
which have long, thinly populated borders it may be rela-
tively easy to evade (e.g. the use of small planes by
smugglers is not unknown in several States).

10561 Export licensing. Some States make export of

protected objects subject.to authorization. This has
several advantages - the exporting State knows what is
going out of the country. It may have an opportunity
to exercise rights of pre-emption (see below [067]).
It may be used to raise revenue (see [070] below). It
also has some disadvantages, however. It may encourage
corruption. Unless the bureaucratic processes operate
efficiently and rapidly, it may slow down the process
of export to such an extent that even an honest exporter
is tempted to evade the system. It again depends on
tight border controls to prevent evasion. In some States
no residual power is given to the . authorities to prevent
export even of a national treasure: e.g. in the United
Kingdom authority to export must be given unless within
6 months of notification of intention to export, a purchaser
can be found within the country. This contrasts with the
 39.

provision in the legislation of the Syrian Arab Republic

where the authorities must grant an export licence for
antiquities sold by the antiquities authorities, those
being exchanged with foreign institutions and those
granted to excavating expeditions (Art. 69(d)), but have
the absolute right to refuse the exportation of any anti-
quity whatever, if they consider that it would result in
the impoverishment of the historic and artistic heritage
-of the country (Art. '66) o

[OS71 Effect on international cuZtura2 exchange. Where

export is prohibited or very severely restricted there
may be some disadvantages for cultural progress generally.
It may prevent foreign teaching institutions from build-
ing up adequate teaching collections for students of the
culture concerned. This is particularly so for ancient
cultures in Egypt and Greece which are of special impor-
tance for archaeology. It may prevent wider knowledge
of that culture in foreign States because it is not ade-
quately represented in their public collections. There
may even be surpluses of material (of low value, dupli-
cates, etc.) which are something of an encumbrance in
their state of origin and yet would be of considerable
value for the purposes already mentioned. States with
such legislation should therefore be encouraged to in-
clude provisions for export for purposes of international
exchange, foreign exhibition and other related purposes.
This conforms with Art. 28 of the 1956 UNESCO Recommendation
 40.

which provides that foreign museums should, in order to

fulfil1 their scientific. and educational aims, be able to
acquire objects which have been released from any restric-
tions arising from the laws in force in the country of origin,

(0581 OWNERSHIP. The nature of export control may well

depend on the provisions of the national law as to owner-
ship. There are three basic regimes of ownership. In the
first, almost all cultural property is privately owned. This
is the situation in the United States, where this regime is
seen in its most extreme form, since there is a philosophi-
cal commitment to as little interference with private property
as possible. The second system is where some or all move-
ables belonging to the national cultural heritage are automat-
ically vested in the State (or public bodies subject to its
control). So, for example, in Israel all objects of archae-
logical value discovered after 1972 automatically vest in
the State. Similar solutions (with different dates) have
been adopted in Belize, Brunei, Hong Kong, Libya, Mexico,
Oman, Sudan; cf. also China, Cyprus and Turkey). Special
rules may apply to objects already in private hands before
that date. The third system asserts special rights in the
State to control cultural objects but permits their private
ownership (Bangladesh, Guatemala, Honduras, Mauritius,
Romania, Uruguay) or, achieving the same effect, vests
ownership in the State, but allows fairly wide powers to
their custodians or possessors (Haiti, New Zealand).

[OS91 Archaeologicat heritage. The 1956 UNESCO Recommen-

 41.

dation on International Principles Applying to Archaeologi-

cal Excavations recommended that each Member State should:
(e) Define the legal status of the archaeological
subsoil and, where State ownership of the
said subsoil is recognized, specifically men-
tion the fact in its legislation.
As we have seen, many States do claim State ownership of
archaeological finds. Such a solution may pose certain
advantages for the control of illicit export (see below
[133]), but it is not unproblematic. Where the finds
belong to civilizations long dead, with which no living
human group can feasibly claim direct connection (e.g.
Hittite and Assyrian sites in the Middle East) the State
may find it easier to assert ownership than where the
civilization is more recent and is still alive e.g. the
New Zealand assertion of State ownership over Maori finds,
for protective purposes, has had to be carefully explained
to the Maori people who regard such finds as rightfully
belonging to them. New Zealand law has a special provi-
sion to provide for their custody of such objects in
certain cases. Where State ownership exists, any moveable
protected under the legislation and found outside the
jurisdiction without appropriate export papers can be
claimed as State property. This applies to cultures distinct-
ly identified with one State (e.g. the Maori culture in New
Zealand) but is much more difficult where a culture is
represented in more than one contemporary State (e.g. an
expert testified in the McClain case ([1361 below) that
 42.

some of the artifacts in question came from Guatemala,

Honduras, Panama and Costa Pica). It may also be of
little assistance where the-rule as to State ownership
only applies after a certain date (Mexico 1972; Israel
1978), preserving the rights'of private owners over goods
acquired before that date. In the case of U.S. v. McClain,
a U.S. court refused to hold that illegally exported
Mexican artifacts were stolen, since evidence had not been
brought that they had been excavated since 1972. The
Israeli legislation has gone some.way to solving this problem
by providing that:
If a person claims that an antiquity was
discovered or found prior to the commence-
ment of this law, the burden of proof is
on him.

f0601 Artistic heritage. State ownership is rather

more difficult to assert in respect of modern artworks.
There the situation is complicated by the rights of the
artist in his creation, and the rights of purchasers from
him. Many States would find it difficult or impossible
to deprive these persons of their rights. Some
Constitutions forbid expropriation except "on just terms"
(e.g. Constitution of the Commonwealth of Australia,
Art. 51 (xxxi)) and this might make such a State assertion
of ownership very expensive.

[061] EXPORT LICENCES. The procedure for obtaining an

export licence, where this is permissible, is normally
 43.

initiated by the‘submission of an application by the in-

tending exporter. Some legislation specifies the kind
of information to be supplied in the application: Zaire
requires a detailed description of the goods, while
Ghana and Nigeria also require the name of the antiquity,
its function, a full description with dimensions, its
local cost or estimated value and the date when, the
place where and the person from whom it was purchased.
More detailed legislation is in force in the Syrian
Arab Republic, where the applicant is required to set
out :
1. The surname, Christian name, profession,
domicile and nationality of the applicant.
2. The port, railway, station or border
post through which the antiquities will
be exported.
3. The destination and intended recipient
of the objects.
4. The manner in which the intended objects
have come into his possession.
5. A description of the antiquities with
their number, nature, size and estimated
price.
These provisions (also applying in Lebanon, Libya and
Saudi Arabia) would provide particularly useful checks
on some malpractices. 'They allow the authorities some
knowledge of where the objects are being sent - their
transmission to a respected professional institution for
educational use or public display may be regarded differ-
ently from their acquisition by a private collector or
 44.

a dealer for resale. The description of the way in which

the objects have come into the holder's possession allows
some kind of check on sources: this may be useful in de-
tecting clandestine excavations and illegal dealing, and
may also allow the authorities to assess the trustworthi-
ness of the intending exporter. Finally, descriptive
details allow some record to be made.

[0621 Identification of object. Clear identification of

the object sought to be exported is important for a number
of reasons. It allows a record to be made of goods leaving
the country. A check can be made, where appropriate, of
objects reported stolen. Evidence may be gained of new
archaeological sites. Such a description may be of use
later if the object is lost after it leaves the country.
Finally, though the object has left, a detailed record of
it is at least retained in the country of origin. Thus
Ghana, Libya, Nigeria, Syrian Arab Republic and Zaire
require photographs to be submitted with the application.
So does the United Kingdom, though not for all classes of
controlled goods (Policy Statement - see below [0641).
Some States require the. objects themselves'to be sub-
mitted (Syria, Lebanon, Saudi Arabia) unless a special
dispensation has been made, while others require the app-
licant to make the objects available for inspection (Ghana,
Nigeria) if required (Libya).
 45.

LO631 Misuse of licences. Unfortunately a great many

countries who authorize export of at least some cultural
property have not made scrutiny of the goods and detailed
applications compulsory. A standard complaint from
cultural authorities in many countries is the evasion or
misuse of licences by misdescription, substitution or
transfer to other persons. Where legislation gives little
guidance as to the form of the licence application and
the manner of its aainistration, authority should be
given to the administering authority to regulate the
matter in detail to avoid these practices.

[064] Classes of licences. Countries which have a large

trade in cultural objects may try to limit the amount of
work involved in examining licence applications -
especially where such a country has an attitude largely in
favour of free trade in cultural objects. The United
Kingdom, for example, which takes its place as one of the
major transit countries of the world, and is also an im-
porting country, has been reluctant to be seen as overly
restrictive of exports, despite the fact that it has now
seen some important collections and works of national
significance transported overseas. In a policy statement
issued on 1 April 1980 (Joint Statement of the Department
of Trade and the Reviewing Committee on the Export of
Works of Art), three classes of licence are mentioned. An
 46.

Open General Licence permits the export;to any destina-

tion, of antiques (more than 50 years old) and works of
art if the value is less than $8,000 except manuscripts,
documents, archives and goods found in the soil of the
United Kingdom. Objects made over 50 years before the
date of exportation and over $8,000 in value and all
archaeological material is subject to special scrutiny
and needs a specific licence. Regular exporters of
manuscripts, documents and archives may apply for a bulk
licence, instead of a specific licence for each item,
provided they undertake to apply for specific licences
in certain specified cases (e.g. illuminated manuscripts
in oriental languages), anything recognized as of
national importance, etc.:
In judging the importance of any document
or group of documents from this point of
view, holders of bulk licences are reques-
ted always to bear in mind the value, from
the archivists' point of view, of dealing
with any archive or other collection of
related documents as a whole. If, there-
fore, they propose to export one or more
documents out of a large collection they
should consider the importance of the coll-
ection as a whole in deciding whether to
apply for a specific licence ...
Such a system clearly relies largely on the honesty and
competence of the exporter and would be easy to evade,
given the current relaxation of custom controls in Europe
generally (see below [118]).

[0651 Decision on application. Once the application

 47.

for an export licence has been made, various steps may

be taken. If the application has to be submitted through
the customs authorities, as is very often the case
(Syrian Arab Republic, United Kingdom) it is then usually
referred to the cultural authorities for a decision.
In some legislation a time limit is specified within
which the authorities must make a decision (Malagasy
Republic - two months: Bahrain, France - one month;
Zaire - 15 days).

[0661 Grounds of decision. Some legislation gives de-

tailed guidance about the considerations on which the
decision will be based. The New Zealand Antisuities
Act 1975 Lorovides that the deciding authority shall
have regard to the follo'wing:
(a) historical, archaeological, scientific,
cultural or local importance:
(b) spiritual or emotional association with
the people of New Zealand;
(cl rarity:
(d) the extent to which similar articles
are held in public ownership in New
Zealand;
(e) the probable effect of its removal on
historical or scientific study or re-
search in New Zealand; and
(f) other relevant matters.
(Art. 6)
The Reviewing Committee in the United Kingdom which is
charged with the job of considering applications to ex-
port cultural objects is enjoined to consider:
 48.

(a) is the object so clo,sely connected with

our history and national life that its
departure would be a misfortune?
(b) is it of outstanding aesthetic import-
ance?
(cl is it of outstanding significance for
the study of some particular branch of
art, learning or history?
The decision whether or not to refuse an
export licence depends on how high the ob-
ject stands in one or more of these cate-
gories and on whether a reasonable offer
to purchase can be made to ensure its
retention in this country.
(Policy Statement 16)
The Syrian authorities, however:
have the absolute right to refuse to
authorize the exportation of any anti-
quity whatever, if they consider that
it would result in the impoverishment
of the historic and artistic
. heritage
of the country.
(Art. 66)

[0671 Right of pre-emption. Many States have provided

for the State to have a right of pre-emption of goods
subject to export control (Bahrain, Kuwait, Mauritania,
Zaire, German Democratic Republic, Senegal). Such a
provision is only useful if an adequate budget is given
to the cultural authorities to purchase such objects.
A not uncommon complaint of national cultural authori-
ties has been that, despite such a provision, they are
unable to prevent known objects of importance leaving
the country because of the total inadequacy .of the budget
allotted to them. In many cases a licence may not be
 49.

refused unless an offer to purchase is made (Bahrain,

Venezuela, Sierra Leone, Zaire). An even looser control
is used in the United Kingdom, where, if the relevant
Committee decides that export should not be permitted
because of its national importance:
. . . this decision is subject to an offer
being made within a reasonable time for
the purchase of the object: failing such
an offer an export licence is granted.
The price offered is that which the Re-
viewing Committee consider reasonable,
after taking advice if necessary. The
Committee take account . . . of any saving
of estate duty obtained . . . by selling
the object to the National Gallery,
British Museum or any other similar ...
institution ...
Several cases have occurred where local institutions
could not raise enough money "within a reasonable time"
and objects of national importance have been exported.
Sri Lanka has in its legislation a somewhat similar
provision whereby the Colombo Museum or some other Sri
Lankan museum has two months from the refusal of an
export licence to buy the object - after that these
institutions are deemed to have lost their right to
purchase and the export licence is granted.

[068] Packing and sealing. The Syrian legislation pro-

vides that the packing of antiquities whose export is
authorized will be carried out at the cost of the aopli-
cant; the antiquities authorities will seal the package
with a lead seal, and will stick on it an official
manifest in which the number and date of the export
 50.

authorization will be mentioned. Similar provisions.are

in force in Lebanon, Libya and Saudi Arabia, except that
the applicant may have to do his own packing (Saudi
Arabia) under the supervision of the antiquities auth-
orities (Lebanon). Such provisions clearly lessen the
possibility of dishonest substitution of a more valuable
object.

10691 Contents of licence. The 1970 UNESCO Convention

provides (Art. 6) that each State Party undertakes:
(a) To introduce an appropriate certificate
in which the exporting State would spec-
ify that the export of cultural property
in question is authorized. The certifi-
cate should accompany all items of cult-
ural property exported in accordance
with the regulations.
To date there is little evidence in national legislation
of the contents of the export licence. Iraq did have a
provision (superseded in 1974) stating that an export
permit should specify "the nature and description of the
antiquity in such a manner as to distinguish it from
others".

[070] Export tax. A number of States require the pay-

ment of an export tax where an export licence is granted.
Such a tax may be a considerable deterrent to export,
especially where the rate is high, On the other hand,
it may also encourage attempts to evade the export control
 51.

system. Because of the budgetary problems of the

cultural authorities such levies, where they exist,
should not simply be used as a revenue raising technique:
the funds should be earmarked for the use of the cultur-
al authorities to control export or acquire threatened
items. Export taxes currently levied on cultural property
vary from 1 to 3% (German Democratic Republic), 5 to 20%
(Lebanon),15 to 25% (Saudi Arabia) to 10 to 40% (Syrian
Arab Republic). There may be exemptions for certain
categories of goods e.g. those sold by the antiquities
authorities, those allocated by them to authorized ex-
cavators or exchanged by them with overseas institutions
(Saudi Arabia).

[071] RefusaZ of licence. It has been argued that the

refusal of an export licence to an owner is to some ex-
tent an interference with the right of free exploitability
of an owner, and his right to alienate to whom he pleases.
It may have a significant economic effect, since prices
in the home market may be lower than.those available on
the open market, or in transit countries e.g. the case
of the Xapoleonic desk believed to have been used to sign
the Louisiana Purchase agreement and offered for auction
in 1975. There was speculation that the price would
exceed $500,000 but after a declaration by the French
government that the-item was a national treasure and could
 52.

not be legally exported from France the price reached

was $185,000 (Duboff, 1977, 374). This is one reason
why some States (see [067] above), will not prevent
export if an appropriate purchase price cannot be raised
within the country concerned. On the other hand, there
are some important arguments against this view. The rules
associated with alienability of property,develo'ped long
before there was any conception of the breadth of con-
temporary international trade, and should not therefore
necessarily be applied to the current situation. Items
of the cultural heritage are in a special category, to
which many traditional "property" concepts may not in
any case be appropriate. Finally, the argument about
better prices on the international market works extreme
detriment to the culture and population of many countries
e.g. in some small Pacific communities with unique and
sought after cultures, native owners have been paid
artificially depressed sums while dealers have made
enormous profits on overseas sales. Thus the impoverish-
ment of the country's heritage is marked by no economic
benefit and considerableinjusticeto the creators and
original owners of the objects sold. It should also be
noted that many States have not found it necessary to
allow export where the price is not matched locally e-g,
Sudan, Ghana, Iraq, Jordan, Mauritania, Uganda, Philippines,
 53.

Sierra Leone, Chile, Syria. This applies even to

countries which in other respects are most sensitive to
property rights. Pakistan, for example, provides that
an excavation permit is not to be refused to a property
owner provided that he undertakes to carry on the excava-
tion in an appropriate manner, and Japan provides lesser
penalties for damage to cultural property by an owner
than by a third party. These provisions are far more
generous to property owners than provisions on the same
matters in other national laws, yet both States nonethe-
less provide for outright refusal, withcut compensation,
of permission to export.

[072] Appeal against refusal. A few States allow an

intending exporter to appeal against the refusal of a
licence (Sri Lanka, New Zealand, Surinam). Some States
expressly provide for no appeal (Malawi). The majority
of States have no provision as to appeal in the legis-
lation (Saudi Arabia). As these decisions are adminis-
trative decisions, an appeal therefore will normally
only be available within the system of review of admin-
istrative decisions in that country. Some States specify
that the decision is a discretionary one (Malaysia).
This would make the primary decision difficult to chall-
enge.

[07x] Safeguards on refusal. It may be desirable, where

 54.

the authorities refuse a licence, to safeguard the object

concerned. Thus Ghana provides (Art. 6, 1969 Decree):
Where the Director is of the opinion that
any antiquity is likely or intended to be
exported (whether lawfully or otherwise),
or where an application for an export per-
mit had been made and refused, the
Director may -
(a) require the owner of the antiquity
or the person in whose possession
or custody it may be to surrender
it to the National Museum: and
(b) pay for the antiquity a price
which is, in the opinion of the
Board, the fair market price of
the antiquity in Ghana.
Other States may be able to achieve the same result-by---
exercising a right of pre-emption, but a number of States
where the authorities may refuse a licence without being
required to purchase the item, run the risk of a dishonest
owner, having failed to export legally, then trying to
achieve the same purpose illegally.

[074] POLICING OF EXPORT PROHIBITIONS AND LICENCES. The

widespread evasion of legislative controls of export means
that States have to consider a variety of means of enforce-
ment. There appear to be many reasons for this current
widespread evasion: the high economic rewards of smuggling,
low risk of detection, lack of knowledge of the law, lack
of commitment to the preservation of the cultural heri-
tage, difficulty in identifying cultural property and so
on. The following paragraphs indicate some of the methods
 55.

national authorities are currently using to avoid these

problems.

[075] Law enforcement agencies. Police and other civil

authorities are authorized to act where they suspect that
an offence is being committed (or attempted). Thus, Syrian
legislation provides that an exporter of antiquities must
present the export authorization on demand to any customs,
postal or police officer or any other officer of the pub-
lic service. Saudi Arabia has a similar provision. Cul-
tural authorities in a number of countries have complained
that the degree of co-operation and activity they receive
from different sections of the public service varies mark-
edly. If national States take enforcement seriously,
therefore, they need to invest in the training and moti-
vation of these agencies to detect and prosecute attempted
export offences.

[076] Customs control. Customs control has been tradition-

ally seen as the most important point of detection and
enforcement. However, there are serious problems in this
view. It runs contrary to current international develop-
ments which favour the maximum freedom of trade and travel
across national frontiers with a minimum of intervention.
It works best in countries which have only a few entry
and exit points and is easy to evade (as authorities in
 56.

many States have informed us) where there are long,thinly

populated frontiers and areas subject to infrequent
scrutiny. It requires considerable knowledge on the part
of customs officers to recognize protected objects.
Finally,. the enforcement of cultural protection legisla-
tion is given a low priority, we are informed, by customs
authorities in many countries, pre-occupied as they often
are with the detection of serious crime, drug-running,
illegal immigration, and currency smuggling. Finally,
in respect of art smuggling by persons whose baggage is
exempt from customs inspection (e.g. diplomats and inter-
national agents), customs control is quite ineffective.
Can these problems be solved?

10771 Baggage inspection. The trend of modern govern-

ments is to avoid provisions which require close control
of goods being exported and baggage examination. It
slows down trade, is inconvenient to passengers, requires
a large, trained customs service and may discourage tour-
ists. There is also a philosophical commitment in Europe
and many other countries to maximizing freedom of move-
ment across frontiers. It is not surprising therefore
that the Introduction to the Canadian Act on illegal ex-
port included the statement:
There can be no policing of the border or
of individuals, dealers or institutions in-
volved in the import and export of cultural
property. The system must be voluntary.
 57.

Canadian authorities recently took action in one case

where Canadian protected items were illegally exported
to the United States, and in another case where a
Nigerian Nok sculpture had been imported into Canada
despite a Nigerian ban on export. Both cases came to
the notice of the Canadian authorities after the goods
had crossed the frontier. The Netherlands government
has also mentioned the impossibility at the present time
of really effective customs control (see [118] below).
The system of spot-checks appears to have little deterrent
effect. It may be worth consulting with customs officials
about the methods now preferred to detect offences against
other laws e.g. the setting up of specialist squads
(narcotics, currency), the use of "profiles" to pick out
persons considered most likely to commit an offence (hi-
jacking of airliners), etc. International customs co-
operation in the exchange of information should also be
maximized. This can be done on the administrative level,
whether or not the Customs Co-operation Council's 1977
International Convention on mutual assistance for the pre-
vention, investigation and repression of customs offences
is implemented (Annex XI foresees assistance in the control
of smuggling of works of art, antiques and other cultural
property).

[078] Customs evasion. Numerous States mentioned the

 58.

impossibility of policing their frontiers adequately to

ensure the detection of art smugglers. It should be
noted that, because of the amount of money involved in
the international art market, the use of private aircraft
and vessels for purposes of customs evasion is no econ-
omic barrier to illicit export. There may, however,
be room to strengthen control at certain strategic points
in a given region. In this connection it should be
noted that some export applications must name a particular
exit point (Syria, Libya, Lebanon, Saudi Arabia). The
legislation of the Chinese People's Republic specifies
that the point of export from the territory must be that
designated in the export permit.

[0791 Expertise of customs officers. A quite consider-

able problem concerns the need to train customs officers
in the recognition of protected objects. Special train-
ing programs may need to be instituted whereby archaeol-
ogists, anthropologists and museum curators pass detailed
information to customs officials likely to come in con-
tact with the objects (i.e. not senior customs staff
alone). Yugoslavia has organized seminars for its cus-
toms officials to help them recognize cultural property
and to limit the possibility of illegal export. Customs
officials in the People's Republic of China appear to
 59.

have good training in distinguishing exportable and non-

exportable goods. The provision of adequate training
may however be a very difficult task for smaller develop-
ing countries whose relatively few trained experts in
the local culture may already be fully occupied locating
and recording cultural monuments and preventing clandes-
tine excavations. The assistance of international organ-
izations in devising training programmes and making
experts available may be a vital contribution to the con-
trol of illicit traffic in those States. Another possibil-
ity is close co-operation between customs and cultural
authorities. In India a government archaeologist is
stationed at exit points in order to identify objects
which it is sought to export. Poland has reported that
close co-operation between customs and cultural authori-
ties prevented 136 instances of illicit export in 1977,
179 in 1978 and 163 in the first 9 months of 1979. In
Nepal all cultural objects, including new and recently
made artifacts, have to be shown to the Department of
Antiquities which affixes a seal and provides an export
licence. On the other hand some countries have reported
serious failures in co-operation between such services.
The cultural authorities of one small island State
have informed us that when in late 1980 they exposed
the blatant activities of a foreign dealer in local artifacts
 60.

to.the national customs authorities, the latter refused

to act in any way to intercept illegal export ship-
ments, "saying in effect that they could not be bothered
with such trivia". Action clearly needs to be taken at
the highest national level to ensure that customs officers
do act in co-operation with cultural authorities.

[OS01 Limits of customs control. For all the reasons

listed, even if all the suggestions for improvement were
adopted, it seems clear that it will have to be accepted
that
.-- - a very large amount of cultural material will be
illicitly exported. Methods of dealing with this
problem other than those already adopted in the 1970
UNESCO Convention are therefore discussed below [1561-[161].

[0811 Declarations on oath. Ecuador and Bolivia have

a provision that persons leaving the country, including
members of the diplomatic corps, are required to swear a
declaration that they are not carrying any such item.
Such a provision brings to travellers the importance
attached by the host country to export control, and may
prevent export by inadvertence. A person who is deter-
mined to carry out goods which are prohibited or not
approved for export will, however, be very likely to be
quite prepared to swear a false declaration. A refusal
to swear such a declaration may indicate to the- authori-
ties that a search of the bags of this traveller would be
 61.

appropriate. This will be of no help, though, where the

traveller is protected by diplomatic privileges and immuni-
ties. It should be noted, however, that the personal bag-
gage of a diplomatic agent may be opened where "there are
serious grounds for presuming that it contains articles ...
the . . . export of which is prohibited by law". Such in-
spection is to be conducted only in the presence of the dip-
lomatic agent or his authorized representative (Vienna Con-
vention Art. 36 (2)). In 1978 Ecuadorian officials opened
the bags of a senior European diplomat in the presence of his
Ambassador and recovered 910 protected objects; archaeologi-
cal artifacts, paintings and sculptures from the colonial
period. The collection was confiscated: (Museum, Vol.
XXXIV, No. 2, 1982, p. 132).

[082] Misuse of the dipZomatic bag. There are many indi-

cations that this is a serious problem. Customary inter-
national law, as well as the Vienna Convention on Diplomatic
Relations (Art. 27(l)), provide that the diplomatic bag
should contain only diplomatic documents or articles in-
tended for official use.

10831 Control of offences by diptomats. A practical step

would be for the Foreign Minister to call together all Heads
of Mission, point out the seriousness with which the State
regards the smuggling of cultural objects, that it is the
duty of all persons enjoying diplomatic privileges and
immunities ,in the receiving State (and this includes the
 62.

families of diplomats) to respect the laws and regula-

tions of the receiving State (Vienna Convention Art.41
(l)), and that export in the diplomatic bag is contrary
to Article 27 of the Vienna Convention. Heads of Mission
can be asked to make sure that all staff of the mission are
so informed. If a State had good reason to suspect that a
particular diplomat was deeply involved in illicit export,
he could be declared persona non grata (Vienna Convention
Art. 9). Finally, if a State is aware that a person nomin-
ated to a diplomatic post in its country is involved in
illicit collecting (e.g. if he were known to have a collec-
tion in his home State of goods illicitly exported from
other countries), the State could refuse to accept that
nomination (Vienna Convention Art. 4), or declare him to be
persona non grata (Vienna Convention Art. 9). It is not
obliged to give reasons for refusal to accept or declara-
tion of persona non grata.

10841 Travel controt. Applicants for visas could be

required to sign a statement to the effect that they will
not unlawfully export any cultural property. This would
at least bring the legal provisions to their notice.
Persons known to have illegally exported cultural property
may be refused visas if they apply. Consider the case
of the dealer in primitive art who, according to one of
the judgments in the English Court of Appeal, admitted
that he had illegally exported the object concerned
(Ortiz case, discussed below [138]). Refusal of visas
is not a very good solution: most countries are trying
 63.

to simplify visa procedures. It also depends on being

certain that a person has illegally e.xported - and
though there may be good grounds for suspicion, evidence
may be thin. Finally, the country concerned may be only
too happy to get the illegal exporter back, so that he
can be prosecuted for his offences: for this reason,
he is unlikely to apply for a visa.

[085] Restrictions on foreigners. Zaire has a unique

provision attempting to deter illegal export. Art. 34
of its Law for the Protection
of Antiquities provides:
.
No person resident abroad who habitually
or occasionally purchases objects of anti-
quity for resale may collect in Zaire
such objects of Za;r~ak origin whether
they are classified or not.
The same prohibition applies to any per-
son acting as agent for some other per-
son even if he resides in Za‘\r~.,
Many States would find it difficult to make such a rule,
since they are committed to maximum freedom of trade and
find provisions discriminating against non-residents
or non-nationals undesirable. There could also be argu-
ment about the conformity of such provisions with general
anti-discrimination laws (national and international).
In Taiwan, transfers to foreigners of registered, privately
owned objects are forbidden by its law, still in force,
first made in 1930. The Malagasy Republic provides that
no gift or bequest of a protected object can be made to a
 64.

person outside 'the State: any person possessing such

goods as a result of an illicit transfer must restore
them immediately to the State,

10861 PubZicity. States can of course do much to publi-

cize their export restrictions, particularly to tourists
e.g. by posters in airports, by routinely including such
information in tourist brochures, by distributing leaf-
lets through museums, by handing visitors leaflets at
antiquity sites, by posting up information in the shops
of dealers in antiquities. It is particularly important
that government tourist agencies be required to provide
knowledge of prohibitions of "souveniring", damage to
and export of cultural property - cases have occurred
where a government tourist agency has actually offered
"wreck-hunting" as one of the attractions of the country
concerned.

10871 SANCTIONS AND OTHER PENALTIES. A common reaction

of cultural authorities is that sanctions and penalties
provided by the legislation in force are far too weak.
While it is true that penalties in many countries are in-
adequate by any test (such as degree of damage, amount of
profit, guilty intent), mere increase in penalties may
not greatly improve law compliance. Unless the laws are
strictly enforced, little notice may still be taken. Even
 65.

if prosecutions. are made, juries may be reluctant to

convict, and judges to sentence, if the penalties are
seen as unduly harsh. The legislation needs therefore
to balance the degree of punishment with a community
education programme and with an effective budget to
ensure sufficient policing.

[088] Fines. Of 124 jurisdictions surveyed in 1981, 106

had provisions controlling and prohibiting export, and
almost all provided for fines. (A few merely refer to
general penal provisions which were not available to us
but which probably also provide for fines.) The amount
provided for is extremely variable - the highest is probably
that of Canada, which provides for fines of between
$5,000 and $25,000 for export offences. Even this may
be inadequate if compared to the value of the object ex-
ported. It is clearly absurd that a person convicted of
illegal export could sell the item abroad, pay any im-
posed fine and still make a profit. While the Canadian
fine is substantial, those of many other jurisdictions
are inadequate. One main reason in many cases is that
the legislation is old and the sums specified have lost
considerable value while general inflation has caused a
rise in the value of cultural goods.

[089] Additiona monetary penalties. Some States provide

 66.

for significant additional monetary penalties in special

cases. Spain provides that fraudulent export is punished
by .a fine equal to 3 times the value of the export tax.
Export or attempted export without authorization is
punishable by a fine equal to 5 times the value of the
object. In Colombia the fine is to be determined accord-
ing to the artistic or historic value of the object.
Traffickers in archaeological monuments are, by Mexican
law, considered habitual delinquents, which results in
the application of double or triple penalties.

[090] Actions for damages. A number of States, among

them Chad, Guatemala, Lebanon, Morocco, Norway, expressly
maintain the civil action for damages alongside the
penal provisions. Action under this head could there-
fore substantially increase the liability of the ex-
porter.

[091] NuZZity of transaction. It should be recalled

that some States provide that certain goods are inalien-
able ([loo] below) or that.certain transactions must be
registered or approved (Burundi and see [OS01 above).
An export transaction in violation of these conditions
will be likely to be regarded as null and void (poss-
ibly with an indemnity for a bona fide purchaser for
value (Kampuchea)). Consider also the effect of confis-
cation on the passing of property in the object [094]
below.

.
 67.

CO921 Incapacity. Austria has a special provision

whereby a person convicted twice within the previous
ten years of such an offence is declared incapable of
acquiring such an object for between 6 months and 5
years. It should also be noted that dealers who engage
in illegal export transactions may be liable to cancell-
ation of their dealer's licence (Syrian Arab Republic,
Tunisia and see [OS11 above).

[0931 Imprisonment. Of 124 jurisdictions surveyed which

had export control, 29 do not expressly provide for im-
prisonment. Again the size of the penalties in those
States which do provide for terms of imprisonment varies
enormously, from 6 days to 3 months (Benin) up to 2 to
12' years (Mexico). By far the most common penalties pro-
vide for maximum terms of imprisonment of 6 months or
1 year; many more provide for up to 2 years while others
provide a maximum of 5 years (Belize, Canada, Ecuador,
Greece, Poland, Turkey, Yemen Arab Republic). Some
States simply equate offences to general violaticns of
customs law, contraband and smuggling and provide for
the same penalties (Brazil, Cuba, Finland, Pakistan)
and certain others apply the penal provisions for crimes
against State property (Bolivia, Paraguay) a

i-0941 Confiscation of object. Of 124 jurisdictions

surveyed, 74 provided for confiscation of the object which
 68.

it was sought to illegally export. In 11 other States,

the State already had title. Not all the confiscation
provisions apply in the same way however. Some legisla-
tion simply provides that the object will be confiscated
(Benin, People's Republic of China,Ecuador, Iran, Italy,
Lebanon, Nepal, Senegal) while others provide that con-
fiscation shall be ordered on conviction (Bahrain,
Botswana, Ghana, Greece, Guyana, Malaysia, United States)
or that a Court shall order confiscation (Sudan). Whether
the goods are automatically forfeit when the offence
occurs, or it requires the intervention of a court, or even
the conviction of the offender, may have important implica-
tions for the enforcement of the law in a foreign juris-
diction (see El381 below). The Federal Republic of Germany
provides that confiscation may take place even where there
is no conviction of a wrongdoer, while Austria, the German
Democratic Republic, Poland and Surinam all provide that
confiscation may take place, irrespective of the owner-
ship of the object, though there may be a special provi-
sion with respect to a bona fide purchaser for value
(Austria). Where it is not possible to seize the object
(e.g. because export has taken place), ,there may be a
special provision for payment of its'value (Greece, Italy,
Malta, Tunisia).

[0951 Other confiscatory measures. A few states provide

 69.

for add.itional confiscatory penalties. In Iraq not only

the antiquity which it was sought to export is to be con-

fiscated, but also all other antiquities in the offender's
possession whether legally or not, In the United States
(Archaeological Resources Protection Act 1979) and Belize,
vehicles used in an illegal or attempted illegal export may
also be confiscated.

[096] Alternative and cumulative penalties. Fines and

imprisonment are often expressed to be alternative or
cumulative at the option of the court. Usually they are

in addition to confiscation and actions for damages where

applicable. Occasionally fine and imprisonment are both
mandatory (Botswana). Sometimes imprisonment is expressed
to be only where the offender has been fined and is in
default (Solomon Islands, Zambia).

[097] Aggravated penalties. Some jurisdictions provide

for increased penalties for repeated offences: thus the

United States provides for a fine of up to $10,000, up

to 1 year's imprisonment or both, while on a second con-
viction the fine may be up to $100,000, up to five years
imprisonment or both. A number of other jurisdictions
have similar provisions relating to any offence against
their antiquities laws.
 70.

LO981 Extradition. For serious crimes a State may be

able to ask for the extradition of an offender from a
foreign jurisdiction to face prosecution in the State
where the crime has been committed. Normally there will
need to be an extradition treaty in force between the
two countries concerned. Such treaties may specify the
particular crimes for which extradition is available
(e.g. by appending a list) or simply include all crimes
for which a certain level of punishment is available
(e.g. more than one year’s imprisonment). States should
consider whether their extradition treaties do cover all
kinds of offences against cultural property for which
they would wish to prosecute fugitive offenders: thus the
United States/Mexico Extradition Treaty of 4 May 1978
(U.S. Treaties and other International Acts Series 9656)
specifically includes:
An offence against the laws relating
to the importation, exportation, or
international transit of goods,
articles of merchandise, including
historical or archaeological items.
Some States have very few extradition treaties, and many
States' extradition treaties would not cover such offences
which are generally fairly recent creations. If a State
wishes to tighten its control over illegal export, this
is an aspect which should be further examined.

LO991 PERSUASIVE PROVISIONS. A number of States have

 71.

adopted other measures designed to encourage the reten-

tion of cultural property in the country. Thus when

cultural property is placed in the public domain by sale

or donation, substantial tax exemptions or estate duty
concessions may be obtained. The legislation of Colombia
provides that:
All persons, entities, commercial
associations etc. who have in their
possession immoveables or any object
covered by this Act and have ceded the
same to the State, National Museum,
Departments, Municipalities or t0
other cultural or scientific insti-
tution, shall be exempt from donor's
tax and upon assessment of income
and estate taxes, the donor shall be
entitled to corresponding deduction
to the extent of the donation to be
assessed by an expert appointed by the
National Monuments Council who shall
take into account its artistic, historic
and scientific value.
(Art. 33)
Concessionary provisions of this kind are also in force
in Australia, Canada,Hcuador, France, United Kingdom
and United States.

[lOOI INALIENABILITY OF GOODS IN PUBLIC HANDS. such

persuasive provisions., to be effective, would need to be
backed by provisions which ensure that cultural property
in public hands in inalienable. Such provisions are in
force in Haiti, Lesotho, Zaire, Cameroon, Mexico, Saudi
Arabia, Thailand. Some other jurisdictions subject alien-
ation by public bodies to special procedures (Benin, Chad,
 72.

Finland, Sudan). Romania absolutely prohibits transfer

of goods from the national cultural heritage to private
hands, and subjects transfers between State units or pub-
lic or cult organizations to special procedures. On the
other hand some jurisdictions expressly allow the Govern-
ment to sell protected items which are its property
(Sabah, Israel). Many jurisdictions have no legislative
provision at all on this matter.

[ 1011 RECOMMENDATIONS. Many exporting States can and

should improve their export control. Steps which can be
taken have been discussed above and are summarized at
[172] below.
 73.

[I.021 TRANSIT COUNTRIES. Transit countries appear to

fall into two groups. There are those through which art
smugglers pass quite quickly and almost inevitably be-
cause of their geographic propinquity to the country of
origin, and there are those to which the illegally ex-
ported goods are directed by plan for the purposes of
restoration, valuation, sale or all three. The problems
facing these groups are rather different. The represen-
tative of ICOM at the Committee of Experts which dis-
cussed the 1970 Convention in draft (UNESCO 16 C/l7 Annex
II p. 2) thought that future regulations must be directed
to the problem of transit countries. This is also the view
of these authors. The second group (dealer/restorer/
valuer countries) has an especially important role in
the illicit market for cultural goods. Accordingly we
devote some space to this group although there are current-
ly few specific legal controls differentiating them from
other importing countries.

L-1031 GEOGRAPHICALLY ADVANTAGED STATES. Certain States

are particularly well connected to international trans-
port systems. Thus a high proportion of tourists and
other travellers to New Zealand, Papua New Guinea and
other countries of Polynesian or Melanesian culture will
pass through Australia. Such countries as Australia can
perform an important function in preventing illicit traffic
 74.

by notifying co-operating authorities of other countries

in the region of suspect shipments or persons, enabling
the country of origin to alert its own enforcement
agencies and prevent repeated offences. It can use its
administrative powers to delay customs clearance until
an officer arrives from the country of origin to check
for stolen goods. It can co-operate with its own cultural
authorities to watch for stolen goods on INTERPOL'S
list, or for persons suspected of illicit dealing. It
is our understanding that these kinds of measures are
often being taken by the appropriate countries at the
administrative level.

[104] Regiona agreements. Another solution is to pro-

vide by international agreement for the protection of the
cultural heritage of all countries in the region. The
1969 European Convention on the Protection of the Archaeo-
logical Heritage (see [0251 above) in its Preamble recog-
nizes that, while the moral responsibility for protecting
the European archaeological heritage rests in the first
instance with the State directly concerned, it is also
the concern of European States jointly. Accordingly, the
Convention embodies a common policy on the archaeological
heritage and sets out obligations of cooperation and ex-
change of information, More stringent obligations may be
included in a further European Convention which is now in
 75.

the course of preparation. An agreement by one of the

geographically important States to regard offences
against the cultural heritage of the region as an offence
under its own law could be an important step forward.
In many of these countries, however, such legislative
proposals would meet with strong opposition. It should
also be noted that American regional arrangements have
so far met with very little success (see 11291 below)..

[1051 "ART MARKET" STATES. These are countries which

supply a great deal of expertise in artworks and anti-
quities and through which much illicit traffic is dir-
ected. Without the services provided by their residents
in authenticating, evaluating, restoring, auctioning
and re-exporting such goods, much of the protection and
profit of the illicit trafficker would be lost. Further-
more, the publicity surrounding the volume of the art
trade, its soaring prices, the aggressive promotion by
auction houses and continual record-breaking sums reached
have done much to promote cultural property as a lucra-
tive field for dishonest activities and attract illicitly
acquired goods to the auction and sales rooms of the "art
market" States (for the problems of publicity see Chatelain,
1976, 15-16).

[106] Policy and practice of the trade. It is difficult

 76.

to escape the conclusion that some members of the trade

are indifferent to the origin of the goods being serviced.
Though these dealers and experts prefer not to be en-
gaged in outright dishonest practices, they may not
enquire into the provenance or authenticity of an object
brought to them for service. (Some examples of this
attitude in relation to acquisition have recently been
clearly expressed by a former museum curator: Hoving,
1981, 63-67). Protestations that it is difficult to detect
stolen or clandestinely excavated and illicitly exported
goods could be more readily accepted if &y real effort
were being made to check provenance (as dealers are re-
quired to do in France (see [llO] below)), to use the
International Art Registry (Adams, 57-59, 67-70), or to
encourage and promote the use of export certificates. It
is hard not to conclude that a large percentage of persons
making their livelihood from activities associated with
cultural property in transit countries prefer to have
these activities unhampered in any way, even if this con-
tinues to encourage illicit traffic.

[lo71 Authenticating. Many cultural experts, including

some employed by government institutions, other public
bodies, museums and auction houses are applied to to give
an expert opinion on the authenticity of particular ob-
jects. Though part of this work is a perfectly proper
 77.

use of expertise, it may contribute to the success of

the trafficker by improving the value of an object which
has no good provenance and by lending a spurious respect-
ability to it. This is particularly so for goods obtained
by clandestine excavation or theft. Thus a statement

by a respected expert that a given antiquity belongs to

a specific period and a particular culture, where the
provenance of the object is dubious, is certain to im-
prove its saleability. The Australian Museum, in its
Policy regarding Acquisition of Cultural Property, has
stated that it will not authenticate cultural property
which does not meet its criteria for acquisition (see
[113] below), nor will it provide information about where
such authentication may be obtained. According to Burnham,
1975, 93 there is an "upper crust" of art dealers who will
guarantee for every work sold its authenticity (that the
work is indeed what the dealer says it is), and its
provenance (that the work has indeed been in all the
previous collections listed, and that its history as presented
is, to the dealer's knowledge, authentic). There are,
however, in many "art market" States, generally no laws
requiring a dealer to give those guarantees (but see El101
below as to French law): still less any control over the
issue of statements as to authenticity concerning objects
presented for inspection. It is, however, possible for a
 78.

State to encourage museums and other institutions within

its borders to adopt policies similar to that of the
Australian Museum, and that should be done. While Art. 7
of the 1970 Convention requires States only to take mea-
sures to prevent such bodies acquiring goods illicitly
exported from another State, Art. 5(e) does oblige States
parties to establish:
. . .for the benefit of those concerned
(curators, collectors, antique dealers,
etc.) rules in conformity with the eth-
ical principles set forth in this Con-
vention; and taking steps to ensure the
observance of those rules.
The ICOM Guidelines on ethical acquisition and the acqui-
sition policies of most Western museums (see collection
in Duboff, 1977, 1170-1183) do not appear to have included
the giving of advice on authenticity to the public as
subject to the same limitations as acquisitions. Regis-
tration of experts has been considered in the United
States (Duboff, 1977, 414-416) but the bill was rejected.

[lo81 EvaZuation. The Australian !4useum in its Policy

Statement has also recorded that it will not make mone-
tary valuations of cultural property nor will it give
information as to where such valuations may be obtained.
The same considerations apply to evaluation as apply to
authentication. It might be added that the practice of
certain "experts" in acting as valuers in connection with
 79.

particular dealers has already proved unfortunate in

respect of works which are of doubtful attribution, or
have been "restored". (See the account of the relation-
ship between Bernard Berenson and the dealer Joseph Duveen
in Secrest, 1979, 232-274.) It should be noted that the
American Institute for Conservation of Historic and
Artistic Works provides in its Code of Ethics (Art. V-C.)
that:
. . . the issuing of paid expertises or
authentications may involve conflict of
interest and is not an appropriate or
ethical activity for a conservator.

[lo91 Restoration. Objects which have been illicitly

exported, and frequently have also been stolen or clan-
destinely excavated, .are often sent to another country
for restoration. It was at a restorer's in Munich in 1973
that an ancient bronze sculpture, reputedly by LyssiPPus,
first became widely known, though it had apparently been
found in waters off the Italian coast in 1964, bought
by a dealer, sold on to a South American collector, sold
by him to an English firm who then sent it on to the
restorers (The National Times (Australia) 26 December 1977,
10). The Sivapuram Nataraja sculpture, illegally exported
from India, apparently began its complicated journey when
sent to an Indian restorer for treatment (see the account
of this case in Burnham, 1975, 87 ff) and was shipped to a
professional bronze restorer in England in 1974. It is
 80.

also true that "restorers" are sometimes'used to camou-

flage stolen goods and that police are able to trace
stolen goods by checkint,: on suspect "restorers". Dis-
honest dealers may also substitute copies for genuine
work at this stage. Note that the American Institute for
Conservation of Historic dnd Artistic Works in its Code
of Ethics regards authent;lations, appraisals for a fee
and engaging in art dealin:i as inconsistent with the
professional activity of ccnservators (Arts V. C, D and
El .

11101 Sale. Dealers in "art market" States may be the

receivers of illicitly expo::ted goods. At present there
is no requirement in these St-ites for a dealer to see a
valid export certificate even of goods which are patently
of foreign origin and recent arrival. The 1970 UNESCO
Convention (Art. IO(a)) requires States Parties to:
oblige antique dealers, subject to penal
or administrative sanctions, to maintain a
register recording the origin of each item
of cultural property, names and addresses
of the supplier, description and price of
each item sold and to inform the purchaser
of the cultural property of the export pro-
hibition to which such property may be
subject.
As wc:'have seen (IO511 above) the number of States which
have letailed legislation of thi; kind is very small,
and tr?e major countries i:l which art dealers operate
(Frar.i;e, Federal Reputillc of Geiinany, Switzerland, United
 81.

Kingdom and United States) are not parties to the

Convention, nor, as it seems at present, about to be-
come so. Registration of dealers would enable some
check to be kept on their activities. France not only
has legislation requiring registration and the keeping
of purchase records by traders in moveable objects but.
also requiring dealers to make enquiries as to proven-
ance and to guarantee title (Law of 15 February 1898,
Decree 70.788 of 27 August, 1970 and see the "Re'gles de la
Profession d'Antiquai.re et Ne)gociant en Oeuvres d'Art
originales" of the Syndicat National des Antiquaires
ne/gociants en Objets d*Art Tableaux anciens et modernes
(text given in Chatelain, 1976, Annex 6)). In the other
countries many professional groups are subject to regis-
tration, self-regulation or government supervision, and
there may of course be police surveillance of dubious
dealers, but generally dealers are not required to guaran-
tee provenance. (There is a useful short survey of the
laws of sale in Europe in Chatelain, 1979, 88-113.) A
system of registration or licensing would therefore be an
obvious step in improving control of dealers. It has
also been recommended by Chatelain (1976, 121) to European
States, and, if adopted by them, this would make the United
States (and possibly Switzerland and Liechtenstein if they
decide not to join in a joint approach of Common Market
countries) outside these improved controls.
 82.

[1111 Dealer groups, however, form an extremely power-

ful lobby and have so far been able to prevent moves for
strictercontrolson their activities. Consider the
"amicus curiae" brief presented by the American Associa-
tion of Dealers in Ancient, Oriental and Primitive Art
in the case of U.S. v. McClain (discussed LO351 above and
[136] below) making very strong criticism of the original
decision in that case to the appellate court which re-
versed it,.on the grounds, inter alia, that "the liveli-
hood of the members of the association will be drastically
affected if the convictions are upheld"' (Extracts from
the brief are given in Duboff, 1977, 1227 ff.). Consider
also the arguments persuasively made by the New York dealer
Ben Heller (in Duboff, 1975, 453 ff.). Dealers also formed
part of the strong lobby seeking to persuade the U.S.
Government not to become a party to the 1970 UNESCO Con-
vention. The power of these groups to frustrate legisla-
tive efforts to control their trade should not be
underestimated. Nonetheless, the importance of the dealer
in the movement of illegally exported cultural objects may
be very significant - see e.g. the role of the New York
dealer Ben Heller in the transactions concerning the
Sivapuram Nataraja (discussed Burnham, 1975, 89-92) and the
Nok sculpture illegally exported from Nigeria for whose il-
Legal import into Canada he.was arrested. New Zealand has
placed significant controls on dealers which could provide a
 83.

useful model for the big transit States but 'New

Zealand is an exporting and importing State rath-
er than an "art market" State. The conclusion
from present practice can only be that the big "art
market" States have no real will to control the facili-
ties provided to the traffickers in illicitly exported
(and frequently also stolen or clandestinely excavated)
goods.

[112] Auction. The auction room in "art market" COun-

tries has a special role in the movement of cultural
goods which have been illegally exported. The world's
largest art auction houses are situated in London, and
are subject to very little control. They satisfy them-
selves that the seller is a prima facie owner of the
piece - and that is all. They are not required to guar-
antee title or examine provenance (though they may include
in the catalogue such details as are known to them) and
usually include in their conditions of sale an exclusion
of responsibility for genuineness, authorship, provenance
etc. (Brough, 1963, 171). Consider, for example, the case
of Winkworth v. Christie's Ltd. (discussed below [1403).
So far, because the United Kingdom has not become a party
to the 197O.UNESCO Convention, there is little chance of
obtaining the return of illegally exported items which
appear at these auction rooms, even wnere the owner of them
 84.

is seeking their restitution (see [140] below). Smaller

auction houses also have a part to play:
In some countries, like Switzerland,
the buyer of a stolen object which has
passed through other hands since its
theft is not implicated by law as a
receiver of stolen merchandise. If he
can maintain he bought the object in
good faith, he has legal title to it.
For this, and other reasons, it is
towards Switzerland that much of the
world's stolen art makes it way. The
story of the Madonna de1 Cossito is a
good illustration of how this works.
The picture, .a thirteenth century paint-
ing on panel, valued atf400,OOO was
stolen in 1964 from a small church near
Rome. It was taken first to Milan, where
a restorer made slight changes in its
appearance to reduce the possibility of
its being recognized, then to Switzer-
land, where it was listed by the receiv-
ing dealer in the catalogue for a little
publicized auction to be held in
Liechtenstein. These notorious auctions,
held in Berne, Zurich and Liechtenstein,
are frequented by a closed group of
dealers whose main purpose is to estab-
lish credentials for a dubious work, and
an alibi for themselves, should the
work be stolen. If it is discovered
that the painting is stolen or smuggled,
the dealer can always say that he bought
it innocently, at a public auction; the
auctioneer can say that it was just
another painting, among hundreds brought
to him for sale.
(Burnham, 1975, 45)
In France auctioneers are subject to much more stringent
conditions as to guarantee of title, and it has been
suggested that this is one reason why French auction houses
do not attain the same volume of traffic in the inter-
national art market. However, it seems that the apparent
 85.

strength of these statutory requirements has been weakened

by judicial interpretation (Chatelain, 1979, 110-113 and
cf. 110-119 on auction law in European States). It seems
that in the United States an auctioneer does not warrant
title to the goods unless he does not disclose the name
of the seller, though he may be liable in some jurisdic-
tions if the goods are stolen (Duboff, 1977, 549). In
none of these States are there any legal requirements as
to compliance with export control in the country of origin.
Even stricter rules concerning stolen goods may not assist,
because of the confusion as to which law should be applied
to determine ownership (see U.S. v. McClain 11361 below,
Winkworth v. Christie's Ltd. [140] below, Attorney-General
of New Zealand v. Ortiz [138] below).

(1131 Recording of transactions. In all the cases where

illegally exported goods have passed into a transit State
for the advantage of the services described, it would be of
great assistance if transactions were recorded. Although
some States prefer, because of their political philosophy,
to allow trade to operate as freely as possible, the
association of clandestine excavation and theft with these
transit countries is so clear that it is difficult to
justify the retention of a system whereby a dealer has no
obligation even to record the identity of the person he
purchased from. In this respect the system established in
 86.

.France should be a guide: a dealer is required to main-

tain a register in which he keeps a daily record of every
transaction, in order of occurrence, together with details
of the person who sold to him. He also records a des-
cription of the goods purchased and the price paid. There
are strict formal requirements as to the keeping of the
register (no erasures, written in ink, prices written in
words not figures) and the register is subject to inspec-
tion at any time. It should be noted that the adoption of
this form of control has already been recommended to the
European States (Chatelain, 1976, 121). It may assist in
persuading transit States to act in this respect if UNESCO
has on record some assessment of the degree to which theft
and clandestine excavation is encouraged by the lack of
control in some transit States (see 11681 below).

(1141 Operation of locaZ tegaZ rules. There may be other

legal rules which have important effects on the movement
of smuggled, stolen and clandestinely excavated cultural
goods. These are statutes of limitation (which prevent
challenges to ownership after a certain lapse of time),
provisions protecting bona fide purchasers for value, and
provisions concerning the application of foreign law. All
these are discussed below([1421-[14911.

[I15 1 RECOMMENDATIONS. Transit States-could provide much

 87.

more help in preventing illicit traffic in cultural

property. The single most important action which could
be taken would be the institution of a system by which
dealers and auctioneers be required to check (at the
least) or to guarantee provenance. There are a number
of other ways in which transit States could free the
legitimate trade in cultural goods from its present
association with illicit traffic and these should be
taken I[1731 below).
 88.

[116] IMPORTING COUNTRIES. Countries which are gene&

ally regarded as "importers" include most Western European
States, the United States, and Japan. Some other States
are both "exporting" and "importing'* (and perhaps also
transit) States (Argentina and some other South American
States, Australia, Canada, New Zealand and South Africa).
Generally such countries have institutions and private
collectors actively entering the international market and
prepared to pay high prices for cultural objects from
other countries.

[1171 EVOLUTION OF PRACTICE. Only Argentina and Canada,

of the States mentioned above, have become a Party to the
1970 UNESCO Convention. Has there been, nonetheless,
any evolution of practice in importing States since 1970?
As far as information is available to us, it seems that
some progress has been made on the administrative level
(co-operation between customs services, and between
museums without government involvement). Some progress
has also been made by bilateral agreements ([1281 below).
A major advance has been the adoption of ethical acquisition
policies (see [119] below) by many institutions. However,
progress on the enforcement of foreign export prohibitions
by legislation and court decision has been slow ([1231,
[136]-11411 below).

11181 CUSTOMS CONTROL. Effective prevention of the im-

 89.

port of goods illicitly exported from other States would

require close examination of consignments or baggage at
the border or point of entry into a State (e.g. major
airports). Such control in present conditions seems
neither practical nor probable. It is not practical be-
cause the sheer volume of international trade and personal
travel would far exceed the capacity of the present
customs services of all States; nor do they consider that
a great increase in these services, largely for the bene-
fit of other States, would be warranted. It is not
probable because, quite apart from these considerations,
the countries concerned are currently committed to policies
of encouraging international communication of all kinds
with a minimum of State interference:
With regard to the obligation to prevent
the import of moveables stolen from museums
and the like in other countries, checks by
customs officials have appeared impractical,
if not impracticable. Controls, in order to
be effective, should imply factual examina-
tions of all transports upon importation,
with the purpose of checking whether they
contain any goods noted on a world-base as
stolen property. In fact, examining ship-
ments on such a large scale as to allow for
a deterring effect is regarded neither
practically possible nor desirable, because
it would considerably hamper the flows of
trade. flIoreover, the breaking off of
tariff and non-tariff barriers between a
large number of countries in Western
Europe . . . goes along with the desire to
simplify or even abolish customs formali-
ties in the relations between these countries,
and consequently goods, today, are in fact
only examined at random, if at all.
 90.

(Comments to UNESCO by the Netherlands government on its

reasons for not becoming a party to the 1970 Convention.)
It should be noted that Canada, which shares this approach to
trade, has become a party to the 1970 UNESCO Convention, but
planned its implementing legislation not to rely on border controls.
It is not intended . . . to set up elaborate checks on
imports at Ports of Entry to enforce this law. First,
it is up to the importer to know whether or not the
cultural property being imported has legally left its
country of origin . . . Second, the Act provides only
for action to be taken when a reciprocating State
requests in writing the recovery and return of cultur-
al property illegally imported into Canada,"
(An Introduction to the Cultural Property Export
and Import Act)
The Committee of Experts considering the Draft 1970 Conven-
tion also referred to "the technical difficulties and very
onerous costs involved in operating systematic customs con-
trols to prevent the illicit importsof cultural property".
An additional complication for some importing States are
problems of extended boundaries with thinly populated areas
where illegal entry is difficult to prevent (Australia). The
reliance on customs control as a major weapon (along with
control of traders, improved ethics of acquisition and public
education) seems therefore to run counter to current customs
practice and policy in importing States. We therefore pro-
pose that, alongside 'the 1970 Convention, a quite different
approach be made to the control of illicit export (see [156]-
[1611 below).

[119] ACQUISITIONS POLICY OF MUSEUMS. Much more success

seems to have been achieved with the adoption of ethical
acquisitions policies by museums. Art. 7(a) of the 1970
 91.

UNESCO Convention requires States Parties:

To take the necessary measures, consistent
with national legislation, to prevent museums
and similar institutions within their terri-
tories from acquiring cultural property ori-
ginating in another State Party which has
been illegally exported after entry into
force of this Convention, in the States con-
cerned. Whenever possible, to inform a
State 0 r origin Party to this Convention
of an o ffer of such cultural property
illegal ly removed from that State after
the entry into force of this Convention in
both States.
The ICOM Recommendations for ethical acquisitions poli-
cies 1970 have been wideiy publicized and followed by
important institutions in many countries. Recommendation
17 reads:
If a museum is offered objects, the licit
quality of which it has reason to.-doubt, it
will contact the competent authorities of
the country of origin in an effort to help
this country safeguard its national heri-
tage.
The quidelines also recommend that direct acquisition
should be preferred to indirect acquisition but that, if
a museum feels obliged to make an indirect acquisition
(i.e. through one or more intermediaries):
. . . this should always be done in obser-
vance of the laws and interests of the
country from which it is obtained, or the
country of origin when tile country from
which it is obtained is only a place of
commercial transit. (Recommendation 8)
Appropriate statements of policy conforming to these stan-
dards have been adopted by major museums in Australia, New
Zealand, United Kingdom and United States. There is little
 92.

doubt that in this respect there has been a major advance

since 1970, helped, it should be added, by substantial pub-
lic invoivement in the issue. (Media coverage of two
acquisition controversies was probably an important factor
in the adoption of the policy by the Metropolitan Museum
of New York.)

[120] ACQUISITIONS BY INDIVIDUALS. Importing States have

pointed out that generally they cannot control the acquisi-
tions policies of private museums and individual collectors.
It has even been said that the adoption of ethical acqui-
sitions policies by some museums puts them at a disadvan-
tage to those persons and institutions which are not so
hampered. Competition between buyers for the best and most
famous pieces of the world cultural heritage increases
prices and encourages illegal export. Consider the case
of the Lysippus bronze, alleged to have been illegally
exported from Italy, considered for purchase by the
Metropolitan Museum (Duboff, 1977, 374), but which ultimately
went to the Getty Museum in California for $5 million,
Clearly very 1it;le of that sum went to the reputed finders
(two Italian fishermen) and none at all to Italy (in whose
territorial waters it was said to have been found, and
which therefore would have had title) nor to Greece, which
takes special interest in all works of the Greek classical
period, Such additicns to the collections of private
 93.

individuals are often made secretly.

11131 TRADE. Illegally exported objects may come to

light when a museum deaccessions or a private collector
puts it on the market (cf. Ortiz case, discussed 11381
below). Control of trading in importing countries is
therefore important. It is, however, more likely that
important items will be sent for sale to one of the "art
market" countries: control of trade has therefore been
discussed at [IlO] and [ill] above; see also 11501 below.

[1221 Eh'FORCEMENT OF EXPORT CONTROLS OF OTHER STATES.

The appearance of an illegally exported (possibly also
stolen or clandestinely excavated) object on the market
in another State may persuade an exporting State to seejc
its recovery. There are various ways in which this may
be done.

[1231 Import prohibition. Papua New Guinea and the r'!:ilip-

pines have made it an offence to import into their tel.ri-
tory cultural objects not covered by an export certificate
from their State of origin. Where such a system prevails
it may be possible to prosecute for illegal import and
confiscate the object for return to the complaining colta-

[124] Procedure under the t970 UNESCO Convention, Art

7(b) of the Convention obliges States Parties to;
 (i) to prohibit the import of cultural
property stolen from a museum or a
religious or secular public monument
or similar institution in another
State Party to this Convention after
the entry into force of this Conven-
tion for the States concerned, pro-
vided that such property is documented
as appertaining to the inventory of
that institution;
(ii) At the request of the State Party of
origin, to take appropriate steps to
recover and return any such cultural
property imported after the entry into
force of this Convention in both States
concerned, provided, however, that the
requesting State shall pay just compensa-
tion to an innocent purchaser or to a
person who has vaiid title to that
property. Requests for recovery and
return shall be made through diplo-
matic offices. The requesting Party
shall furnish, at its expense, the
documentation and other evidence nec-
essary to establish its claim for re-
covery and return. The parties shall
impose no customs duties or other
charges upon cultural property returned
pursuant to this Article. All expenses
incident to the return and delivery of
the cultural property shall be borne by
the requesting Party.
Article 13 of the Convention requires States Parties:
(c) to admit actions for recovery of lost
or stolen items of cultural property
brought by or on behalf of the right-
ful owners;
(d) to recognize the indefeasible right of
each State Party to this Convention to
classify and declare certain cultural
property as inalienable which should
therefore ipso
-3 . facto not be exported,
and to facmcovery of such
property by the State concerned in
cases where it has been exported.
Some use has been made of these provisions: thus Canadian
 95.

Customs officers seized two pre-Columbian statues from

Mexico which were forfeited and returned to Mexico. Simi-
lar action was taken by Canadian authorities in relation
to a Nok sculpture from Nigeria. On the other hand such
procedures may be very slow: the case of the Nok sculpture
has not yet finally been resolved. Ecuador has been seek-
ing the return from Italy since 1974 of 12,000 pre-
Columbian artifacts illicitly exported. Both Italy and
Ecuador are parties to the 1970 UNESCO Convention. The
goods were sequestered by the public prosecutor in Genoa
in 1975. The civil action by the Ecuador authorities Was
successful in March 1982 but the judgment is currently
under appeal: (Museum, Vol. XXXIV, NO. 2 1982, 132-
133).

[125] Requests through diplomatic channels. A formal

request was made by the Cameroon government for the re-
turn of the Afo-A-Kom, a wooden carving sacred to the
Kom people, which appeared in a New York art gallery.
It was returned. The Indian Government initially asked
the United States to investigate the arrival of the
Sivapuram Nataraja in the United States (an agreement was
subsequently reached between its American holder and the
Indian Government) (Burnham,1975, 91).

[126] Co-operation between administrations. A certain

amount of co-operation appears to be occurring directly
 96.

between customs administrations. In 1974 direct liaison

between the U.S. Customs Service and Mexico's Special
Unit for the Defence of the Cultural Patrimony led to the
return of a 400 lb. sculptured stone monolith which had
been removed from Mexico several years before (see Press
Release, 30 January 1974, in Duboff, 1975, 565).

I1271 Co-operation between private institutions. On

occasions a private institution may be willing to return
to their country of origin items which are being sought -
even where these had not been illegally exported. Thus
the Australian Museum has returned a. ceremonial slit
drum to Vanuatu and the Wellcome Institute of London recent-
ly gave a collection of archaeological items back to Yemen
(UNESCO Restitution Committee, 2nd session, 14-18 September
1981, CC.81/Conf. 203/10, paras. 16 and 23). Such actions
show encouraging developments within the museum fraternity
towards a responsible attitude to requests for the return
of goods which are regarded as of particular importance.

[1281 Bilateral agreements. A recent development has

been the signing of a bilateral agreement between the United
States and Mexico (Mexico, 1970). Such an agreement is
especially important because of the propinquity of the
United States, the enormous popularity of pre-Columbian
artifacts there, the fact that the United States is not yet
a party to the 1370 UNESCO Convention and the fact that
the United States acts both as a transit and an importing
 97.

country. According to this treaty, a State may request

the return of stolen cultural property through the diplomatic
channel and the requested State will take action (including
litigation where necessary) to recover and return it. It
is perhaps of value to note that, in the case of Mexico,
the United States government was keen to enlist the help
of the Mexican authorities in stopping drug trafficking.
This clearly assisted in the negotiations. Other exporting
countries might well consider whether they could also use
some quite separate issue of importance to the importing
country to encourage negotiation on a bilateral treaty con-
cerning illicit traffic in cultural property. An Executive
Agreement (i.e. between administrations, rather than Govern-
ments) has been signed in similar terms with Peru (Agreement
for the Recovery and Return of Stolen ArchaeolcTical,
Historical and Cultural Properties, Lima, 15 September, 1981).

[129] Regional agreements. The Pan-American Treaty of

1936 provided for customs officers of the signatory
countries to permit imports of protected items only where
accompanied by appropriate export documents from the
country of origin. Very few countries were parties to
it, and it was largely ineffective. The 1976 San Salvador
Convention on the Protection of the Archaeological, His-
torical and Artistic Heritage of the American Nations pro-
vides (Art. 11) *for requests for recovery and return
accompanied by evidence of illegal export to be passed
 98.

through the diplomatic channel. The State petitioned

shall employ all available means in
order to locate, recover and return
the cultural property concerned.
(Art. 11)
The same article also provides that where judicial action
is required for the recovery of foreign cultural property
unlawfully imported or removed, it is to be instituted in
the appropriate courts by the competent authority of that
State. There is a specific proviso that the petitioning
State also has the right to institute judicial action in
the State petitioned. (Unfortunately the Convention has
not been widely adopted and the United States is not a
party, though it should be noted that the United States has
on occasion initiated prosecutions in these circumstances
[145] below.)

[I301 LITIGATION. Where no treaty exists and an object

appears publicly in another jurisdiction in defiance of
an export prohibition, a State may decide to sue in the
jurisdiction where the goods are situate for return of
the goods or their value. However, as a general rule of
international law States will not enforce the legislation
of other States (but see [148] below). A litigant would
generally need to claim some special interest in the object
of the dispute e.g. ownership (see [1461 on standing to
sue), A State may of course also wish to punish the
 99.

wrongdoer: in that case he'may seek extradition (see

10471 above) or criminal prosecution of the offender by
the government of the country where the goods now are
for breaches of its own law (cf. the McClain and Hollinshead
cases discussed below [136]).

[13ll Claim to property by a foreign State. While the

doctrine of sovereign immunity may prevent a State being
sued in a foreign jurisdiction, there is nothing to prevent
it from suing. Accordingly it may sue the possessor of
goods to which it regards itself This
_--as having title.
applies particularly to goods in the public domain, but
also to goods which are confiscated or forfeited to the
State on illicit export. If the State does not have title
to the objects, it has (in general) no claim which it can
enforce outside its own jurisdiction. If itowns the
goods, the question then becomes whether the courts of
the State where the object is found will recognize and
enforce that title.

[132] Property in the public domain. In some States a

great deal of moveable cultural property is in the public
domain. This applies particularly to States which have
taken title to all archaeological finds (see [058]-[OS91
-above) or to States which regard themselves as owners of
national collections. It should be noted, however, that
 100.

in Common Law systems very little distinction is made

between public and private law. Most moveable cultural
objects would therefore be in the hands of bodies not
regarded as agencies of the State (e.g. museums). There
may be cases where museums and other institutions have
a directrelationshipwith the government through the
antiquities authorities: in such cases the State may be
able to sue for losses to them.

[133] Distinction between public and private property.

This distinction may have important consequences when a
State is seeking to enforce its cultural heritage laws
in a foreign jurisdiction. In 1918 an action was brought
in England to prevent the auctioneers Christie's selling
the "Medici papers" (King of Italy and Italian Government v.
Marquis of Medici and Christie 34 Times Law Reports 623).
These were documents dating from the eleventh to the eigh-
teenth century collected by the Medici family. They in-
cluded letters to and from Lorenzo the Magnificent and
others belonging to the State of Florence. About half of
the 800 lots were State papers. The other half were of
great historical interest: their export was forbidden and
the Italian State had a right of pre-emption. The judge
granted an injunction, pending the trial of the action, to
prevent the sale of the State papers, but not of the
others. The others were subsequently sold at auction,
despite the judge's warning that this might expose the
 101.

vendors and the purchasers to an action for damages.

[134] Sale and illegal export. If the goods have been

legally sold by a public entity in the country of origin
and then illegally exported it is difficult to see how
that State could press a claim in.a foreign court since,
unless confiscation provisions apply (see Cl391 below) it
would no longer have title. A better safeguard in this
situation would be to make local restrictions on alien-
ability of goods in public hands (see [lo01 above). This
would prevent a purchaser acq-uiring title, and the State
could then sue as owner. of it is not desired to permit
export of an object then, for the reasons set out below
[1481, the most that should be allowed when passing objects
from public to private hands is possession or custody.

11351 Illegal export and sale. For property in the

public domain it would seem this situation is unlikely,
for the State would become aware of the illegal export
when asked to transfer title, which it could refuse
to do. If it agrees to transfer title it clearly cannot
complain.. If the object is secretly sold by a wrongdoer
and the buyer has not checked the provenance [040],
it would be difficult for him to claim the benefit of a
bona fide purchaser provision (see [144] below). In the
Medici papers case (discussed above [133]) the English

,
 102.

Court did allow the Italian State an injunction to pre-

vent the sale of State papers which had been illegally
exported by their possessor.

[1361 Theft and illegal export. Where an object in

public ownership has been stolen in one country and
illegally exported to another, there may be a remedy.
The case of U.S. v. Hollinshead 495 F.2d 1154 (1974) con-
cerned a U.S. dealer in pre-Columbian artifacts who
conspired with another person to procure such objects
in Central America. One of them was a rare stele known
as Machaquila Stele 2, taken from a Mayan ruin in the
Guatemalan jungle, cut into pieces in Hollinshead's
presence, labelled "personal effects" and dispatched to
him in the U.S.A. According to Guatemalan law such a
stele was the property of the Guatemalan Republic and
could not be removed without the permission of the
Government. Hollinshead was convicted under the U.S.
National Stolen Property Act. To succeed in this type
of action, however, it is important to be able to prove
ownership of the object. In the case of U.S. v. McClain
545 F.2d 988 (1977) .Rodriquez, one of the defendants,
arrived in San Antonio (U.S.) with a truckload of Mexican
pre-Columbian art. He was unwise enough to offer it
to the Mexican Cultural Institute in that city, which
happened to be run by the Mexican Government. Under a
 103.

1972 Mexican statute, all pre-Cdlumbian antiquities, except

those previously legally acquired by private persons, are
the property of the State, and, if exported without the gov-
ernment's permission, constitute stolen property. The Mexi-
can Cultural Institute contacted the F.B.I. and the defen-
dants were prosecuted and convicted under the U.S. National
Stolen Property Act. The conviction was, however, reversed on
appeal on the ground that whether these artifacts could have
been owned privately (by coming legally into the hands of
private persons before the date of the Mexican Act which
made these types of objects subject to State ownership)
should have been left to the jury to decide. The difference
between this and the previous case appears to turn on the
fact that the Guatemalan artifact was well documented, re-
cognizable and the Guatemalan State's claim to ownership
of it was notorious. In McClain's case there was a variety
of objects, none of which, it seems, had been recorded by
the government concerned nor had they been specifically
claimed by it - they fell only within a generic description
which might, or might not, have applied, depending on the
date of their finding and export, since the appellate
court specifically found that it was only after 1972 that
Mexican legislation extended public control over all such
items, and that it contained a proviso protecting pre-
existing ownership rights. It would seem wise, therefore,
 104,

not only to inventorize as much State-owned property as

possible, but also to specifically provide that illegal
export of State-owned goods is theft. Finally, where
States have an extradition treaty which includes theft
(perhaps only for objects above a certain value) a State
may be able to initiate legal proceedings for the extra-
dition of the offender (see [047] above). To date no
case has come to our notice of such proceedings in relation
to cultural property.

[137] Theft, illegal export and sale. This situation

might raise the problem of the bona fide purchaser for
value. To limit the operation of this rule it would be
wise to ensure little ambit for bona fides by publicizing
the theft, by marking all publicly owned property, by
making known restrictions on alienation etc. We know of
no litigation which has covered this issue,

[138] Property not in the public domain. This situation

may arise where a State provides no restriction on property
being privately owned and traded within the jurisdiction
but provides for confiscation or forfeiture on illegal
export, The New Zealand Government is currently pursuing
a claim of this kind before the House of Lords in England
(Attorney-General of New Zealand v. Ortiz [1982] 2 W.L.R.lO-
Queen's Bench; Judgment of the Court of Appeal - 21 May 1982;
 105.

appeal pending to the House of Lords). It is alleged by

the plaintiff that a series of carvings was illegally
exported by an English dealer from New Zealand in 1973,
that he sold them to Ortiz in New York that year and that
Ortiz took them to Switzerland where he held them until
1978, when he sent them to Sotheby's for auction. New
Zealand law prior to 1975 provided that the goods were
forfeited to the Government if they were exported (or
an attempt was made to export them) without a licence.
The New Zealand government obtained an injunction to
prevent the sale of the carvings while the question of
ownership was determined. Staughton J. (at 31) decided
that English courts should not only recognise but should
enforce the New Zealand legislation.
Comity requires that we should respect
the national heritage of other
countries by according both recogni-
tion and enforcement to their laws
which affect the title to property
while it is within their territory.
The hope of reciprocity is an addi-
tional ground of public policy leading
to the same conclusion.
This decision was overturned in the Court of Appeal (Denning
M.R., Ackner and O'Connor LJJ). The main reason for the
Court of Appeal's decision was the view that interpreta-
tion of the phrase, "shall be forfeited"; meant the goods
could only become the property of the New Zealand Govern-
ment after court action'in New Zealand (see [094] above)
 106.

and that the goods were not therefore automatically the

property of the New Zealand Government. For this reason
confiscation provisions need to be carefully drafted
(note that Staughton J. took a different interpretation
of the words, relying on the purpose of the legislation
to keep cultural property within New Zealand).

[1391 A further incidence of a Government claiming prop-

erty not in the public domain was that of Union of India v.
The Norton Simon Foundation (United States District Court,
Southern District of New York, 74 Cir. 5331; United States
District Court, Central District of California, Case No. TV
74-3581-RJR). This was the case of the Sivapuram Nataraja
which had been removed from a temple in India for restora-
tion, was subsequently held for several years by a private
collector in Bombay, sent to the United States accompanied
by a false export certificate and bought by the Norton
Simon Foundation from a New York dealer. This case raises
some particularly important issues as to standing to sue
(see [147] below). The case however was not pursued to
judgment as a settlement was achieved by which the Siva
would be returned to India after a ten-year period (see
the account of this affair in Duboff, 1977, 109-114).

[1401 CZaim by an individual. Claims by an individual

or juristic person in private law would generally arise
 107.

out of theft and illegal export, or theft, illegal export

and sale, though the day may come when claims relating-to
wrongful import or clandestine excavation will be made by
individuals (see El461 below - standing to sue). An indi-
vidual should normally be able to sue in his own jurisdic-
tion, but a judgment of that court will be of little use to
him unless the defendant has assets there against which he
can enforce it. If he wants restitution of the object
itself, he will have to sue in the jurisdiction where the
objects are situated. In the case of Winkworth vs. Christie's
Ltd. [19801 2 W.L.R. 937 an English judge considered the
StatUS of certain works of art which had been stolen from a
private collector in England, taken to Italy without his
.
knowledge and resold there. Under Italian law a purchaser
in good faith for value acquires a good title. The purchaser
sent the goods to Christie's in London for auction and the
original owner asserted that the objects belonged to him.
The English judge decided that the question of ownership
was to be decided by Italian law, even though this would
apparently have the effect of depriving the English collector
of his ownership. The reason for this decision was that the
Italian purchaser of the goods asserted that he had a valid
title by purchase and the validity of a transfer of move-
ables is, as a general rule of private international law,
governed by the law of the country where the goods are at
the time of the transfer. That was Italy, and therefore
 108.

the validity of the transfer was to be decided according

to Italian law.

[141] Limits of jurispzwdence. Case-law is as yet very

little developed on the enforcement of foreign export con-
trols. Cases on the enforcement of other categories of
foreign law are not reliable precedents. There have been
only a handful of cases in the major jurisdictions con-
cerning cultural property, some of which (e.g. the Medici
case (see [133] above)) are too early to be reliable. The
rules on enforcement of foreign laws vary considerably
from State to State and it is an extremely complex area of
law ("private international law" or "conflict of laws").
Not all the reports have included all the questions of con-
cern to cultural heritage lawyers, and it is possible that
they were not all considered by the judge, since this is a
relatively new field of law with few legal experts to con-
duct cases and give evidence. Thus' some important issues
remain unresolved in the cases described. All but one of
the cases (that decided by the German Bundesgerichtshof
described in [1491 below), have been decided by courts
which are not final courts of appeal and may therefore not
reflect the views of the highest judicial authorities in
the countries concerned. Finally, the concept of "cultural
heritage" is itself of recent origin, and there may be
consequential developments in the law which are yet to appear.
 109.

11421 Operation of ZegaZ rules. Litigation on cul-

tural heritage is subject to certain general rules
which often make success in such a claim difficult.
If claims for return of illegally exported goods are
to be met (and damages are inadequate compensation
for the loss of a unique cultural item), some of these
rules may need attention. Work on the unification of
rules has already been undertaken by UNIDROIT which
has drafted (but not adopted) a Uniform Law on the
Acquisition in Good Faith of Corporeal Movables (1974).
This Draft, however, applies to all moveable property
and may therefore be too wide since, in the present
serious upsurge of offences against cultural property,
it may be easier to get agreement on a revision of
rules restricted to that category. Furthermore, the
Draft has been based specifically on the need to promote
international trade (with a fair balance between the
interests of the parties) whereas rules designed to
improve protection of the cultural heritage might
well produce a different compromise. Finally, the
Draft has not dealt with certain important issues
such as choice of law, statutes of limitation, and
standing to sue. A new initiative dealing with all
such matters, therefore, seems appropriate. It should
 110.

be noted that such a project would involve examina-

tion of the objects covered by the "cultural heritage"
([0071-[0221).

[143] Choice of law. The rule generally applied is

that ownership of moveables is determined by reference
to the lex rei sitae (law of the place where the goods
are situated). This may have a particularly detrimental
effect on cultural property claims, since the very reason
that the goods are where they are may be that their
present possessor believes that the law in that juris-
diction may be favourable to him e.g. the use of juris-
dictions which have the bona fide purchaser rule (see
El121 above and [1441 below).

[144] The bona fide purchaser for value. All legal sys-
tems have the problem of apportioning the loss when a thief
has sold the stolen goods to a bona fide purchaser for
value. In the Common Law the bona fide purchaser gets no
special protection ("caveat emptor") - apart from the
Statute of Limitations (see [145] below) and the rule con-
cerning sale in market overt (discussed in Winkworth v.
 111.

Christie's Ltd.). Continental systems, however, do protect

the bona fide purchaser after quite a short period e.g.
3 years. The 1970 UNESCO Convention provides (Art. 7
(b) (ii)) that States Parties shall:
at the request of the State Party of ori-
gin, . . . take appropriate steps to recover
and return . . . cultural property . . . provi-
ded however, that the requesting State
shall pay just compensation to an innocent
purchaser or to a person who has valid title
to that property ...
In their comments on this provision Finland and the IJether-
lands mentioned that there was some incompatibility with
the provision of their legislation on the bona fide pur-
chaser. The Dutch government stated that a person who
obtains, in good faith, a moveable object is protected to
the extent that he need not restore this object to the ori-
ginal owner after three years have elapsed since the theft
or loss of the object concerned. However it continued:
The Dutch government has already informed
parliament that, in principle, the Conven-
tion will be submitted for ratification.
The government, however, is preparing an
act aimed at creating an exception to the
above-mentioned fundamental rule of Dutch
civil law, and intends to submit the Con-
vention and that act, the existence of
which is a prerequisite for the implementa-
tion of the Convention, as one package to
parliament. '
It may be that, even for States 'who are not planning to
become party to the 1970 UNESCO Convention, the rules as
to bona fide purchasers.could be revised. The fact that
cultural objects are unique, that a period such as 3 years
is very short in the eyes of an art investor, and that
 112.

the biggest auction houses are not required to disclose

provenance, means that art investors may be prepared to
accept the risk of buying stolen goods on the ground that
the purchaser, at any rate, will be protected. Such a
situation may call for special action. It should be
noted that among the problems caused by the diversity of
legal approaches in Europe for the restoration of stolen
cultural property, Chatelain (1976, 87-97) gave particu-
lar attention to the bona fide purchaser provisions.
Article 12 of the draft European Convention on Offences
Against Cultural Property set out certain factors which arr
to be taken into account in assessing the bona fides of
purchasers of cultural property and should make it difficult
for a purchaser to succeed where he has not been sufficiently
vigilent or where there has been wide publicity.

[1451 Statutes of limitation. Most legal systems have

rules which restrict the bringing of suits after a number
of years. Such rules are designed to cure any legal uncer-
tainty remaining about events which occurred some time before
and to sensure that claims are made as soon as possible when
the evidence is recent. The usual limits may, however, be un-
duly short: a calculating thief may use them to his advantage.
In its simplest application to art theft,
the statute of limitations works like this.
A painting is stolen and the dealer puts it
away in a bank vault until the period has
expired (five years in France, seven in
England and the U.S.A., then years in Italy).
At the end of that time, he contacts the
owner and offers to sell the work back to
him. He proposes that they split the going
market value - i.e. that the owner pay fifty
per cent of the painting's value for its
 113.

return (at least three times what the stolen

object would be worth on the black market).
If the owner wants the painting back, he has
no recourse but to comply. With the statu-
tory period expired, there is no prosecutable
crime, and the police will probably not be
interested in simply helping the owner get
his painting back. If the owner does not
wish to cooperate, the dealer is still in a
much improved position. From Switzerland,
where he may have stored the painting, he
can offer it openly, with no fear of prose-
cution, and little fear that the Swiss
police would decide to seize merchandise
stolen in another country without a speci-
fic demand from that country to do so.
The value of the painting has probably
appreciated, and, if it is not too well
known, he can hope to negotiate it on the
open market, thus realizing its full value,
rather than a fraction.
(Burnham, 1975, 47)
Some thought needs to be given to what is a reasonable limita-
tion period where works of great and enduring cultural value '
are concerned. Chatelain, in his study for the Commission
of the European Communities on the theft of cultural property,
thought 30 years to be an acceptable limit for public owned
property (Chatelain, 1976, 115).

[1461 Standing to sue. To bring an action in a court a

person has to have locus standi (or standing to sue).
The rules as to locus standi vary between jurisdictions,
but normally require that the plaintiff is a juristic
person (i.e. an individual or corporate group recognized
by law) with a direct interest in the subject matter of
the litigation (e.g. he is claiming ownership of the goods
 114;

in dispute). However there may be some other persons who

are concerned about the issue of the litigation. Thus
in the case of Onus v. Alcoa 36 A.L.R. 425 certain aborig-
inals descended from the tribe which originally inhabited
the Portland area of Australia, were held to have standing
to sue for an injunction to restrain damage to aboriginal
artifacts in that area: on the other hand the Australian
Conservation Foundation was held not to have standing to
enforce legislation protecting the environment, since
the act complained of did not affect the interests of
the foundation in any material way, but only its interest
in enforcing a public law as a matter of principle
(Australian Conservation Foundation v. Commonwealth 28
A.L.R. 267). It may therefore be that an interested body,
let us say, an archaeological institute which has shown
a deep interest in the protection of the archaeological
heritage, would be held in another jurisdiction not to
have sufficient "legal interest" to support locus standi
to sue in that jurisdiction for breach of export controls.
(Traditionally the English Common Law has been much more
rigid in restricting locus standi to interested parties
than United States Common Law.) This may have unfortunate
results if the Government is unwilling to litigate (and
there may be reasons of politics, finance or apathy for it
not doing so).
 115.

[1471 Special rules on standing. An additional interest-

ing point concerning standing to sue occurred in the
complaint of the Indian Government against the Norton Simon
Foundation concerning the Sivapuram Nataraja. It was
alleged that the Nataraja (an image of the god Shiva) was
itself a juristic person, capable of suing, and that it
had been wrongfully detained (Duboff, 1977, 110-113).
Though such a concept of legal personality is unusual in
Western legal systems it is not unknown in others e.g. in
many African traditional systems of law and in other
societies such as that of the Australian aboriginal, juri-
dical personality may be recognized in nature (trees, rocks),
in spirit ancestors, or in the. physical embodiment of a
spiritual character. Such rules may be of great interest
concerning actions for various kinds of misdealing with
cultural property, especially where this property embodies
important spiritual and cultural values, and should be further
explored.

[148] Foreign penal, revenue and other public laws. A rule

of English private international law forbids the enforcement
of foreign penal, revenue or other public laws. Just what
laws this doctrine applies to is not clear: the case-law
is confused and doctrinal writers are divided. The argu-
has been raised in the case of Attorney-General for New
Zealand v. Ortiz (see [1381 above) and, although rejected
 116.

by Staughton J. at first instance (1982 2 W.L.R. 10 at

23) it met with some success in the Court of Appeal. As
a general rule it has been stated (Regazzoni v. Sethia
1958 A.C. 301) an English Court will give effect to the
laws of foreign and friendly States. Two questions remain:
are export prohibitions sanctioned by confiscation "penal"?
And is there a case for the enforcement of cultural heri-
tage laws as a special category (see [1491 and cl591 below)?

[149] Public policy. Courts in any jurisdiction gener-

ally will not enforce contracts which are contrary to
public policy. The heads of public policy adumbrated by
the courts vary considerably between jurisdictions.
This doctrine was put to use by a German Court in a case
in Hamburg (Federal Court decision of 22 June 1972, BGHZ
59, 83). In that case a Nigerian company had entered
with a German company an insurance contract covering the
transport by sea of three cases of African masks and
statues from Port Harcourt (Nigeria) to Hamburg. The
contract was in breach of a Nigerian prohibition on the
export of cultural objects. The plaintiff was seeking
damages for the loss of six bronze statues. German law
will not enforce a contract contrary to public policy.
The Court considered the UNESCO Convention on the Means
of Prohibiting the Illicit Import, Export and Transfer
of Ownership of Cultural Property 1970 and found that
this represented the emerging international public policy
 117.

on the issue. Therefore, even though the Federal Repub-

lic of Germany was not a party to the Convention, the
German Court held that the contract was unenforceable
in Germany since, it said, "the export of cultural proper-
ty contrary to a prohibition of the country of origin
for that reason merits, in the interest of maintaining
proper standards for the international trade in cultural
objects, no protection from the civil law". In the case
of Regazzoni v. Sethia mentioned above [148], the House Of
Lords refused to enforce a claim under a contract which
directly contravened an export prohibition of India (ex-
port of Indian jute to South Africa). It could be argued
that, in the same way, no assistance should be given to
claims under contracts which breach cultural heritage ex-
port laws. Such refusal of aid by the courts does not
ensure the return of illegally exported objects to their
places of origin, but it does make illicit transactions less
attractive, by making them difficult to insure or enforce.

[150] Attitudes to property. Legal systems reflect

their society's -attitudes to property. Thus in the Medici
case(_[133] above) the judge appeared to favour the right
of a private owner to trade his goods freely although
they were subject to export control. (Note, though,
that this case was never tried in substance, only on a
preliminary issue, and is also very old. It may not be
 118.

followed today.) A legal system may be reluctant to

enforce a rule which it sees as trammeling an owner's
right to trade freely his goods (see [071] above).
This is particularly true of the United States, where
the free exploitability of private property has strong
ideological backing. It is interesting to note, for
example, that when the Indian Government asked for the
assistance of the United States for the return of the
Sivapuram Nataraja, the United States officials took no
action, on the basis that, although it had been illegally
exported, the dealer had good title to it in the United
States (he stated to the authorities that he had bought it
from the person who presumably had illegally exported it.
See Burnham, 1975, 92). There are differences in the
acquisitions policies of American museums on this aspect.
A Director of the Smithsonian Institution is required:
. . . to ascertain that any proposed new
acquisition was not unethically acquired
from its source, unscientifically excava-
ted or illegally removed from its country
of origin after the date of adoption of
this policy.
But the Brooklyn Museum only states that it:
will not acquire or accept as a loan any
work of art when it is either known or
suspected that the work of art may be
stolen property or may be in the United
States illegally, that is, contrary to the
law of this country.
(Both texts quoted from Duboff, 1977, 1182 and 1179.)
 119.

Paradoxically, this attitude may have the effect of making

private trading more restricted in other countries. Thus
legislation in New Zealand before 1975 interfered in no
way with private trading in cultural property until illegal
export was attempted. Since 1975 the New Zealand Govern-
ment has taken title to all archaeological finds, and can
therefore no longer be met by the kind of argument that
could be made in the case of Attorney-General of New
Zealand v. Ortiz i.e. that the dealer legally bought the
carving in New Zeland and that, having got it out of
the country (albeit illegally), he could pass ownership
to Ortiz. It was argued by the American Association of
Dealers in Ancient, Oriental and Primitive Art in the
McClain case (discussed 10351 and [136] above) that the
property could not be regarded as "'stolen" from the
Mexican Government since it had never been in the possession
of that government (Duboff, 1977, 1230). The Court (545
F.2d 988 (1977), 996) did not accept this argument but it
did adopt the view of Bator (Bator, 1975, 300) that:
it is not a violation of law to import simply
because an item has been illegally exported
from another country . . . This means that a
person who imports a work of art which has
been illegally exported is not for that reason
alone actionable, and the possession of that
work cannot for that reason alone be disturbed
in the United States.
Accordingly a careful reading of this case would suggest
to exporting countries that they should cla+ title to
 120.

cultural goods whenever they can (even if they do not ob-

tain possession) and state that by their national law,
property exported without an export licence or in breach
of a prohibition is stolen property.

[151] EDUCATION AND PUBLIC INFORMATION. Generally there

appears to have been, since 1970, more discussion about
the issues in importing countries, but not all of it has
been favourable to UNESCO's aims. In the United States,
for example, wide publicity was given (e.g. in the New
York Times) to controversial acquisitions by the Metropol-
itan Musuem, to the acquisition of the Sivapuram Nataraja
and to the implications of the 1970 UNESCO Convention.
Little media attention on the other hand seems to have
been given to the more dubious aspects of provenance of
the Lysippus statue acquired by the Getty Museum (see
[lo91 and [1201 above) and the Hollinshead case (see [136]
above). An encouraging sign has been the activity of lobby
groups such as the Archaeological Institute of America in
publicizing the evils of illicit traffic. As against this
one must balance' the emergence of vocal and (in monetary
terms) more powerful lobby groups publicizing views mini-
mizing the amount of illicit traffic and the harm it
causes and actively promoting a policy of no interference
in the free trade in cultural property (see 11101 above
and [168] below). For this reason some professional opin-
ion is against stirring up too much public involvement in
 121.

the importing countries: it may be easier for a museum

director to quietly hand over an important piece to a
museum in another country at its request than if chauvin-
istic feelings are stirred up about national collections.

(1521 Professiona bodies. There appears to have been

a marked increase in discussion of illicit traffic in
cultural goods in professional journals during the 1970's.
There have been a number of articles in American legal
periodicals during this period.- There was also a SympOS-

ium in 1974 (papers published in Duboff, 1975) at which

every shade of opinion was expressed. Currently a series
of letters is being published in the English journal
Antiquity on aspects of the restitution debate (part of
the general discussion of illicit traffic taking place
in such journals). Recent meetings of museum experts
which the authors (both lawyers) have attended (e.g.
Conference of Museum Anthropologists, Canberra, Febru-
ary 1982) have resulted in discussions on problems of
provenance and legal moves to stop illicit traffic.

[i531. General pubtic. So far as we are aware, import-

ing countries have made no effort to publicize the evil
effects of "souveniring", though their tourists can do
a great deal of damage by this form of amateur collecting.
Thoughmostof the importing countries have school visits
 122.

to museums included among their educational activities,

we have no information that problems of illicit traffic
are publicized, though this may be lefttomuseum offi-
cials (many of whom take responsibility for this job).

In Zimbabwe, for example, leaflets on the importance

of chance finds and the obligation to notify are handed
out : similar materials could well be developed to indi-
cate the destruction caused by souveniring and collecting
illegally exported goods, to offset any acquisitive urge
engendered by praise and experience of great national
collections.

[X4] RECOMMENDATIONS. It is clear that action taken

within importlng States after the arrival of the cultural
objects has been detected will be most important in tighten-
ing control over illicit traffic. While the most promising
way oftackling the problem seems to us to be by way of
international initiative [1561-11611 and [1711, there
are some steps which could be taken by importing States
on their own initiative, and these we list below at [174].

i
 123.

11551 INTERNATIONAL ACTION. From a study of national

laws and administrative action in "exporting", "transit"
and "importing" countries it seems to us clear that illicit
traffic in cultural property cannot be stopped by customs
control. For reasons already discussed ([0741 above)
exporting countries are in many (if not most) cases u.n-
able.to prevent illicit export. For reasons also dis-
cussed above (see [118]) importing countries neither
can, nor are they altogether willing, to do so either.
Proposals by either of these two groups that major efforts
should be made by the other are, we therefore feel, un-
helpful. It seems to us far more fruitful to attack
the problem from another angle altogether: one which
will, moreover, have a considerable chance of success.
We regard this new approach therefore as constituting
the most important part of our recommendations (see
[1561 to 11611 5elow). At the same time, these recommen-
dations can be carried out in addition to other measures
and to the 1971j 'JXZSCO Convention approach, and we have
therefore list& other Recommendations which may assist.

11561 VNIFICAT--0:J OF TECHNICAL RULES OF CONFLICT OF LAW?.

Since it has to be expected that a good deal of cultura?.

property will continue to be illicitly exported (and often
also stolen or clandestinely excavated) and arrive i.2
importing countries, a major effort should be made L.,o
 124.

discover and analyze the legal rules affecting the re-

turn of such property, to prove their effect by remov-
ing obviously disadvantageous ones and to unify them to
avoid the exploitation of loopholes (e.g. by inconsis-
tencies between different systems of limitations and bona
fide purchaser rules). These areas of law are often of
considerable complexity in each national legal system and
have often spawned a very considerable legal literature
in each jurisdiction. This project would therefore require
considerable legal expertise from persons experienced in
the subleties of each system.

[157] Survey of rules. The first step would be to seek

.
reports from legal experts, especially in the importing
and transit countries on the local rules as to:
(1) standing to sue (foreign private bodies,
foreign States, see [1461 above), cer-
tain cultural entities in their own
right, (see [1471 above):
(2) the law which is applied to transfers of
moveables i.e. lex rei sitae or other
(see [1431 above);
(3) recognition and enforcement of foreign
law ([142], [1481, [1491 and 11501
above);
(4) statutory limitations as to time within
which prosecutions and civil suits can
be initiated (11451 above);
(5) rules as to bona fide purchasers (Cl441
above);
(6) rules as to restitution, confiscation
or damages which would effect the re-
turn of cultural property; and
 125.

(7) any extradition provisions which may

be relevant to offences against cul-
tural property.

El581 Effect of Zegat ruZes. Once these reports on legal

rules have been collected, an assessment should be made by
legal and cultural experts together, of their effect in pre-
venting or encouraging illicit traffic and the recovery of
illicitly traded items.

[1591 ProposaZs for improvement. Legal experts could

then propose changes which would both improve and harmonize
these rules in their effect on culturai property. Their
proposals would need to be the result of considerable
study and discussion, but the following suggestions could
be made:
(1) the creation of a special category of
offences against cultural property to
which special rules would apply (not
therefore interfering with the rules
or attitudes of a national system as
to free trade or acquisition of move-
ables generally). (Cf. [0431 above,
Council of Europe initiative)):
(2) the adoption of a rule that certain
special bodies would always have status
to sue for the return of cultural prop-
erty (e.g. UNESCO, an individual or
body corporate claiming ownership under
the law of the country of origin, 'pub-
lic interest" groups such as a National.
Trust or Archaeological Institute in
the country of origin, the State of ori-
gin etc.):
(3) the adoption of a rule recognizing the
juridical standing accorded to certain
cultural objects themselves in their
countries of origin and allowing such
standing in every State's legal system.
 126.

(4) the adoption 0f.a rule that the law of

the country of origin will always be
applied to establish the validity of
the transaction;
(5) the adoption of rules concerning:
(a) how the "country of origin"
is established,
(b) the use of presumptions in
aid where evidence is diffi-
cult to establish,
(cl what law should be applied
where no country of origin
can be established:
(6) the adoption of rules extending and
unifying time limits for prosecution
and civil suit for illicit transfers
of cultural property;
(7) the adoption of rules reversing the
"bona fide purchaser" and "market overt"
rules In relation to cultural property.
(Note that changes to the bona fide pur-
chaser rules of European States have al-
ready been suggested by Chatelain, 1976,
114-115, in respect of the European States.
Note also that the new rule may provide
for compensation to bona fide purchasers
(see [144] above) or it may not (cf.
Chatelain, 1976, 114);
(8) the enforcement by the local courts of
foreign law on illicitly exported cul-
tural property e.g. on nullity of contract,
forfeiture, rights of pre-emption, etc.:
(9) the general adoption of rules as to res-
titution of such property the subject of
litigation (remedy in damages inadequate);
(10) the use of certain presumptions in rela-
tion to cultural property e.g. as to date
of excavation (see [0591 above), as to the
illegality of export/import unless appro-
priate licences can be produced, as to lack
of good faith if provenance has not been
investigated;
 127.

(11) the adoption of'uniform provisions as to

penalties for offences against cultural
property;
(12) the adoption of a practice of including
offences against cultural property as a
special category in extradition treaties;
(13) the broadening of jurisdictional rules to
permit prosecution o-f offenders against
laws for the protection of cultural prop-
erty by any State in the region, or by
any State at the request of the State
of origin, by the State of origin itself,
by any State with a real connection with
the transaction (e.g. transacting party
is its national or resident, goods are
situated in its territory, goods crossed
its territory etc.). (Rules of this
nature are included in the draft European
Convention on offences against cultural
property.)

[1601 International convention adopting these rules.

Once appropriate rules have been recommended they should
be adopted by international convention, and, where necess-
ary, implementing national legislation. What is the prac-
tical likelihood of such a convention being adopted? It
may be urged that the proposals above would make some far-
reaching changes in a number of national legal systems and
that such a convention is unlikely to be adopted. How-
ever the following factors operate in its favour. It pro-
vides an additional and alternative method of waging the
war against illicit traffic in cultural property and
should therefore be approached favourably by those States
 128.

which have stated that they support the aims of the 1970
Convention but are not in favour of its methods or have
philosophical, political or constitutional difficulty in
implementing them. The concept of "cultural heritage"
as a special category apart from other kinds of property
regulation, is now well accepted (national legislations,
UNESCO Recommendations and Conventions), and restrict-
ing legal changes to their effect on the cultural heri-
tage would minimize the impact on other areas of law.
Some of the changes recommended are far-reaching, but
even if only some were accepted, protection of the cul-
tural heritage would be considerably improved. Some have
already been proposed (cf. Chatelain's proposal on the
bona fide purchaser). Furthermore, in other areas of
law where States felt strongly about the serious conse-
quences of inadequate and inconsistent rules of private
international law, such changes have been accepted e.g.
the Hague Conventions on validity of marriage, adoption,
recognition of custody orders, testamentary dispositions
etc. Provided that States are determined to take steps
to eliminate illicit traffic (i.e. provided powerful
lobby groups do not'stop State participation at the
threshhold of the exercise) there is no real reason why
such a project of unifying the rules of private interna-
tional law concerning the protection of cultural property
 129.

should not be likewise successful. Finally, it might be

noted that, according to discussions with the Canadian
authorities, even States which do implement customs con-
trol are more likely to discover the presence of objects
in their territory through information received after
their entry (see [077] above). There is therefore no
reason why States which are already parties to the 1970
Convention should not cooperate in such a venture.

[1611 Procedure to encourage acceptance. The chances of

a successful project along these lines could, however, be
enhanced by using an appropriate method of procedure. At
the first stage (collecting information on national rules
of private international law) pains should be taken to keep
this issue out of the political arena. Private interna-'
tional law is a technical area and legal experts should
be asked to investigate it. UNESCO should consider ask-
ing an existing law unification body to undertake this
job (Hague Conference or UNIDROIT). If this is not feas-
ible, independent legal experts should.be consulted. It
should also be recognized that collecting, analyzing and
proposing improvements to law is a slow task, and euffi-
cient time must be given for it. On the other hand, if
the 1970 UNESCO Convention is not going to be generally
adopted by importing countries, it can do no harm to have
another process, however slow, in train. A time lapse
 130.

may also enable legal experts to put the case for amend-
ment of the rules of private international law affecting
cultural property to the national authorities (e-g, a
good case could be made to the English government that
the decision in Winkworth v. Christie's Ltd. (discussed above)
[140]) worked substantial injustice to the English collector
and that there is therefore good reason to change the
rule concerning .lex rei sitaej.

[162] INFORMATION ON PROVISIONS OF NATIONAL LFGISLATION.

The publication of the two volumes on protection of the
moveable cultural heritage (collection of laws) by UNESCO
has been generally welcomed. Wider dissemination of such
information is essential if States are to enforce foreign
export laws. Prosecution relating to the illegal impor-
tation of a Nok sculpture into Canada appears to have
been delayed by difficulties in establishing the appropriate
Nigerian law.

[163] Continuing pubZication by UNESCO. The continuing

publication in the UNESCO series, of laws not yet published
or since amended, is to be recommended: but there are
reasons why a better legislative information system would
be preferable. A publication of legislative texts such
as these is not (and can hardly be) totally- comprehen-
sive, or abreast of every current development (many States
are changing their legislation). Furthermore, States may
need information on superseded or repealed laws: cf, the
 131.

view taken in the McClain case [ 1503 above. The setting

up of an even more comprehensive stock of information
should therefore be considered.

11641 Computerized legistative survey. Access by national

cultural authorities, UNESCO and INTERPOL to a centralized
data bank, holding all past and current national legisla-
tion on cultural property, would allow immediate retrieval
of accurate information on foreign export laws. Additional

information on proposals to amend such laws could be in-

cluded. The collection and translation of such material
is a slow and costly process; once such a task is per-
formed it should not be duplicated. There are already
large existing holdings of legislation and other related
materials. Their location, contents and current activity
should be ascertained. The possibility of amalgamating
them in a centralized, computerized data storage system
should be investigated. Such a system would need continuous
monitoring i.e. there would need to be active contact with
national authorities, and rumours of legislative change
would have to be pursued. It would not be sufficient to
rely on national autho.rities to voluntarily supply informa-
tion. Such a system would also provide the raw.material
for legal research on the cultural heritage. Although this
suggestion would make access to information available
quickly and accurately, the provision of information on
 132.

legislation is, of itself, not going to be the most

significant factor in improving control over the illicit
export of cultural property, since lack of knowledge of
other States' export laws is not, we feel, the principal
reason why they are not being administered. The collec-
tion of laws is of inestimable value to States which are
anxious to prevent illicit traffic: it is of virtually
no use to administrations in importing Countries which
take the view expressed in U.S. v. McClain (see [ISO]
above) e While, therefore, this aspect should not be ig-
nored, we feel that this must be only one of many mea-
sures taken.

Cl651 ASSISTANCE IN PREPARING INVENTORIES. States with

few resources and technical expertise could be greatly
helped with the preparation of inventories. The tracing
of illicitly exported or stolen cultural property would
be much easier if adequate records are available. (See
10411 above and note that the success of the Guatemalan
government in achieving the restoration of Machaquila
Stele 2 was due in a great part to its ready identifica-
tion, 11361. above).. We therefore recommend that UNESCC
offer technical assistance to "exporting“ States in the
setting up of inventory systems and the actual work of
inventorizing.

[166] ASSISTANCE IN DRAFTING LEGISLATION.. Some small

new States may have difficulties in allocating expert
 133.

draftsmen'to.prepare new or.amended legislation. UNESCO

could here usefully offer assistance. While the prepara-
tion of model guidelines for such legislation would have
some utility, we doubt whether it would really repay the
effort involved. In our experience, most such legislation
needs to be "tailor-made" for the jurisdiction concerned,
because the nature of the goods being trafficked varies,
the geographical constraints vary, the enforcement pro-
cedures vary. While a great deal of help can be gained
from other models, a most useful body of information of
that kind already exists in the two volumes of national
laws on the protection of cultural heritage published
by UNESCO. In developing guidelines or offering assis-
tance, the opportunity should also be taken to consider
the rules of private international law in their effect
on cultural property ([157]-[159]).

11671 ASSISTANCE IN TRAINING OF CUSTOMS OFFICERS. A

common complaint of cultural authorities in "exporting"
countries has been apathy or ignorance on the part of
customs officers. Good results in stopping illicit traffic
have been reported from States which have had active
training programmes for customs officers. Cultural ex-
perts in some small new countries are too hard-pressed
trying to prevent clandestine excavation etc. to under-
take the task, If UNESCd could offer assistance in the.
 134.

training of customs officers in recognition of objects

from the threatened culture, this could be of great
assistance.

[168] RESEARCH INTO CAUSES, SCOPE AND EFFECT OF ILLICIT

TRAFFIC. There are some aspects of the trade in illicitly
traded cultural objects which could be elucidated. Thus
information on national legislation could be usefully supple-
mented by information on how well this legislation is en-
forced (number of arrests, numbers convicted, size of
penalties imposed by Courts etc.). Information available
to us suggests that some legislation is virtually "a dead
letter" from its inception. Research into the reasons ,why
this is so would greatly assist draftsmen of other or
amended legislation. Research into the size of the problem
would also be useful, since many dealer lobby groups are now
arguing that the problem is very small. (Cf. the view
expressed by the International Confederation of Art Dealers
(CINOA) that the percentage of illicit traffic in the art
market was very low (Report of Second Session of Inter-
governmental Committee for Promoting the Return of Cultural
Property, 14-18 September, 1981, UNESCO CC=81/CONF. 203/
10 p. 11.)) It would also be useful to know how well
or badly licensing systems work e.g. the view has been
expressed that the Indian system is "so inefficient that
.no one uses it" (Burnham, 1975, 163-164). It would also
 135.

be useful to examifie extradition practice, and to find

out whether extradition proceedings have ever been under-
taken or succeeded for an offence against cultural property.
Finally, although there is much anecdotal material avail-
able (e.g. in Burnham, 1975 and Mayer, 1972) on the
ways in which illicit traffic actually works, considera-
tion could be given by UNESCO to promoting research on
the various steps in the process e.g. poverty stricken
local populations, international dealers, illicit export,
restoration, valuation, auction etc. It is difficult to
predict whether this part of the survey would reveal use-
ful material, since a great deal of concealment is an auto-
matic consequence of illicit trafficking. Nonetheless,
even if this aspect of the report were incomplete, the
other information collected as described above would be
of great value in rebutting claims that illicit traffic
is a minor problem and in determining priorities in aid
to exporting countries. It may also indicate useful leg-
islative steps which could be taken (e.g. to improve licen-
sing arrangements).

[169] PROMOTION OF REGIONAL ARRANGEMENTS. There are cer-

tain areas where regional arrangements are appropriate and
useful e.g. between North and South American States, between
European countries and between Pacific countries. Co-
operative projects are already under way in these areas (e.g.
 136.

U.S./Mexico Treaty, Council of Europe initiatives,

Australian survey of Pacific holdings etc.). While
such projects should be encouraged (and there may be room
for more), they leave untouched many other serious areas
of illicit traffic. Experience to date also suggests
that regional arrangements may be difficult to reach and
of limited adoption. We therefore suggest that, among
the measures taken by UNESCO, regional arrangements be
encouraged, but that other recommended projects be given
priority in resources.

11701 RECOMMENDATIONS. Concerted international action

would appear to be the only way to forward protection of
the cultural heritage from illicit trafficking, Accordingly,
we list below the steps which could be taken by UNESCO,~
or? where appropriate, by some other international body, to
achieve this end.
 137,

F1NA.i RECOMMENDAT'IONS

11711 RECOMMENDATIONS AT THE INTERNATIONAL LEVEL. Since

this seems to us the most fruitful line of approach, we
have listed these recommendations first. We recommend (in
order of priority):
(1) that UNESCO undertake a major initiative
(possibly by supporting a UNIDROIT or
Hague Conference survey) to collect the
rules of private international law affect-
ing the illicit movement of the cultural
heritage [142]-[150], [156]-11601;
(2) that UNESCO (perhaps again in a support-
ing role) subsequently arrange expert
consideration of the effect of those
rules and how they could be improved
[1571-[158];
(3) that UNESCO (perhaps again in a support-
ing role) encourage an intergovernmental
Convention on the improvement and unifi-
cation'of rules of private international
law affecting the cultural heritage [159]-
11601;
(4) that UNESCO offer assistance in preparing
inventories of national cultural property
[0201-10221, [165];
(5) that UNESCO offer assistance in the train-
ing of customs officers 10791, [1671;
(6) that UNESCO offer assistance in drafting
legislation to those States in need of it
[0071-[0191, r054'-r0601, [0871-[loo],
[1661;
(7) that UNESCO offer assistance to those States
seeking it, in the development of an approp-
riate licensing scheme and in its implement-
ation [061]-[073];
 138.

(8) that UNESCO continue to publish and update

information on national legislation protect-
ing the cultural heritage [1631;
(9) That UNESCO consider the cost and advantages in
the establishment of a centralized data bank
on national legislation accessible by INTERPOL,
UNESCO and appropriate national cultural
authorities [164];
(10) that UNESCO promote research into the
causes, scope and effect of illicit traffic
[168]; and .
(11) that UNESCO encourage regional arrangements,
where appropriate, for the suppression of
illicit traffic [169].

11721 RECOMMENDATIONS TO EXPORTING STATES. Though we recog-

nize that many exporting States have made intensive efforts
to control illicit traffic and that many factors are not
within their control, the,following may be a useful check-
list to ensure that all possible steps have been taken. We
recommend:
(1) that exporting States should make sure that they
have adequate legislation for the control of
export of cultural property. In making this
analysis they should pay particular attention
to
the definition of cultural property [008]-
10191,
the establishment of an inventory system
[020]-10223,
the control of clandestine excavation. [0241-
10311,
the control of theft [032]-10471,
the control of trade [0481-[0531,
 139.

the type of export control [0541-[057],

the ownership of the national cultural
heritage [0581-[060],
the inalienability of cultural property
in public hands [loo],
State rights of pre-emption [067],
persuasive provisions 10991,
the use of an export licensing system
which is effective [061]-[0731,
the method of enforcing export control
[0741-[086], and
the severity of the penalties prescribed
[0871-[097],
(2) that exporting States should, where necessary,
seek the help of UNESCO in drafting adequate
legislation:
(3) that exporting States should survey their admin-
istrative practices and guidelines to ensure
that proper motivation and'priorities are
established at all levels and in all sections
of the administration to enhance the protection
of the cultural heritage [074]-[OSO];
(4) that legal relations with other states should
be established for the return of illegally
exported goods and control of illegal traffic
by means of
the 1970 UNESCO Convention [1241,
regional agreements [1291,
bilateral agreement [1281,
extradition arrangements [098];
(5) that full advantage be taken of co-operation
between administrations and other institutions
for the control of illegal traffic, in particu-
lar by
 140,

co-operation between national police

administrations and INTERPOL [047],
requests through diplomatic channels
[1X1,
requests to private institutions E1271,
use of the 1970 Convention procedures
where available [124],
requests to customs and cultural authori-
ties for intervention even where the 1970
Convention does not apply 11261,
extradition procedures where available
lo981 ;
(6) that educational and public information campaigns
be initiated or improved 10291;
(7) that litigation be undertaken in other States
where appropriate for the return of cultural
property:
(8) that support be given to any project to revise
by international agreement the rules of private
international law which currently operate to
the detriment of control of illegal traffic in
the cultural heritage [1421-11501, [156]-[161];
(9) that support be given to any project to dissemin-
ate information on national export control leg-
islation [1621-[164];
(10) that maximum information be supplied for any
research project undertaken by UNESCO into the
causes, scope and effect of illicit traffic
within the country [1681;
(11) that exporting States take such steps as are
available to them to prevent smuggling by
diplomats [0811-10831.

[173] RECOMMENDATIONS TO TRANSIT STATES. Transit States which

wish to actively fight against illicit traffic should consider
 141.

implementing the following steps. We recommend:

(1) that transit States which are geographically
advantaged should adopt a policy of inter-
vention to prevent illicit traffic;
(2) that transit States which are "art market"
States should consider carefully their
policies towards the legitimate activities
of their nationals and residents and their
services to illicit traffic and should, as
far as possible, prevent the services of
authentication, evaluation, restoration, sale
and auction being made available to goods
illegally trafficked. As far as possible they
should enlist the help of local professional
bodies and curatorial institutions in setting
appropriate standards [105]-[112] and they should
also consider legislative control of sale
and auction, especially in respect of stolen
goods [llll-[1131;
(3) that all transit States should consider local
legal rules which may encourage the use of
their territory for the transit of ,illicitly
exported goods [1421-61501 and should actively
participate in any UNESCO sponsored survey into
the operation of these rules and their effect
on the cultural heritage [157]-[158];
(4) that all transit States should consider enter-
ing into appropriate international legal
arrangements to curb illicit traffic in cul-
tural property e.g.
the 1970 UNESCO Convention,
bilateral agreements [128], and
extradition agreements [047] as appropriate;
(5) that transit States which are geographically
advantaged should give special consideration to
entering regional agreements [104] with export-
ing States where these are.requested;
(6) that all transit States make their policy on
illicit traffic known to all levels and in all
departments of the administration;
 142.

(7) that all transit States initiate or improve

administrative co-operation with exporting
States, especially in respect of customs,
police and cultural authorities;
(8) that each transit State assist in all possible
ways any UNESCO survey into the connection of
illicit traffic with the transit State [168].

[174 1 RECOMMENDATIONS TO IMPORTING STATES. Importing States

which wish to actively fight against illicit traffic in
cultural property should consider the following steps, We
recommend:
(1) that importing States which are unable or
unwilling, after full consideration, to
adopt and implement the 1970 UNESCO Conven-
tion accept responsibility for improving
detection and return of illicitly trafficked
goods after they have entered the territory
of the importing State (1181.;
(2) that importing States adopt a policy of maxi-
mum co-operation with countries of origin '
where goods have been stolen or clandestinely
excavated and, as far as is compatible with
other policies concerning free trade, also in
respect of goods which have been illegally
traded and/or exported [1191-[1201, [1251-
[1271;
(3) that importing States instruct their adminis-
trations, at all levels and in all departments,
of this policy, and set appropriate priorities;
(4) that importing States support any UNESCO spon-
sored survey into the rules of private inter-
national law which operate to the detriment of
control over illegal traffic in the cultural
heritage [1421-[1501, [156]-[161];
(5) that importing States not parties, and not in-
tending to become parties, to the 1970 UNESCO
Convention accept a special responsibility to
enter bilateral [128] or regional legal arrange-
ments [129] to control illicit traffic by what-
ever means are appropriate and acceptable;
 143.

(6) that importing States should ensure that

offences against cultural property are
covered by their existing and future
extradition arrangements:
(7) that importing States should, wherever possible,
initiate or improve administrative co-operation
with exporting and transit States, especially
in respect of customs, police and cultural
authorities:
(8) that importing States should assist in all
possible ways any UNESCO survey into the
causes, scope and effect of illicit traffic in
cultural property [168];
(9) that importing States take steps to ensure that
their diplomats do not participate in illicit
trafficking [OSl]-[083].
 144.

BIBLIOGRAPHY

This list only includes works specifically referred to in

the text'of the report.

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BATOR, P. "International Trade in National Art
Treasures: Regulation and Deregulation"
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BROUGH, J. Auction, 1963
BURNHAM, B. The Art Crisis, 1975
CHATELAIN, J. Means of Combating the Theft of and
Illegal Traffic in Works ot Art in
the Nine Countries of the EEC, 1976
CHATELAIN, J. Forgery in the Art World, 1979
DUBOFF, L.ted.1 Art Law: Domestic and International, 1975
DUBOFF, L. The Desk Book of Art Law, 1977
HOVING, T. King of the Confessors, 1981
LEITCH, D. The Discriminating Thief, 1968
MKRORY, P. & "The International Protection of Cultural
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MEYER, K. The Plundered Past, 1974
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