Tomorrow (Friday 19th May), a new convention intended to tackle international cultural property crime will be opened for signature by the Council of Europe (the ‘CoE’, Europe’s leading human rights organisation, including 47 member states, set up to promote democracy and protect human rights and the rule of law in Europe; not to be confused with the EU or the European Council which are entirely different beasts). The Convention on Offences relating to Cultural Property has been billed by the CoE as “the only international treaty specifically dealing with the criminalisation of the illicit trafficking of cultural property”. It seeks to establish and implement minimum standards for the prosecution and punishment of offences such as theft of cultural property, unlawful excavation, illegal imports and exports and dealing in cultural objects of unlawful provenance.
The new Convention has progressed swiftly and with little fanfare. It will supersede and replace the Delphi Convention (of the same name) which was enacted in 1985 but failed to get out of the starting blocks, since only six states signed it and none proceeded to ratification. The first inkling of a new convention came with the ‘Namur Call’ adopted by the European Cultural Convention in April 2015, promising to reinforce European co-operation to address the illicit trafficking and destruction of cultural property. Several meetings and only just over 24 months later, and the Convention was adopted by the CoE on 3rd May. What efficiency!
To a large extent, the Convention ‘does what it says on the tin’: It obliges states which sign up to criminalise certain fairly predictable forms of behaviour relating to cultural property. As well as those offences already mentioned (theft, unlawful excavation etc.), it extends to fraud offences (falsification of documents) and the destruction or damage of cultural property. The criminal act must generally have been committed intentionally, and in some cases, an alleged offender needs to have known of the unlawful provenance of the relevant item (or, in certain instances, it might be enough that he or she should have known but failed to exercise an appropriate level of due care and attention).
In various press releases and statements issued by the Council of Europe in the run up to the Convention’s launch, the Council characterised the new legislation’s purpose as to ‘plug the loopholes’ which enable those involved in the trafficking and destruction of cultural property to slip through the net. Such ‘loopholes’ are considered to include national laws protecting good faith purchasers which can allow offenders to move objects with unlawful provenance across borders, enabling ‘tainted titles’ to be ‘laundered’, and the objects in question to be sold into the market.
The CoE highlighted two key issues driving the need for a new convention: Firstly, the rapidly increasing involvement of organised crime and terrorist groups in the trafficking and destruction of cultural property, in particular in Syria and Iraq. In attempting to address this issue, the Convention seeks to reach beyond those directly involved in looting and destruction to the buyers, dealers and fixers downstream, since without these players, there would be no demand, and ultimately, no (or at least reduced) looting, so the argument goes . Secondly, the impact of technology on the illicit trade in cultural goods was emphasised. No longer is the black market primarily located in flea markets, antique shops and auction houses; rather we need to be thinking about social media and the Deep Web. Indeed, contracting states are asked to encourage internet providers and web-based sellers to co-operate in creating and implementing policies to combat the illicit art and antiquities trade.
The provisions of the Convention and the motivations behind its enactment certainly make a lot of sense. It’s hard to quibble with its basic rationale. What does pose more of a challenge, however, is to fathom exactly how this new legislation will fit within the existing regime. Its preamble explicitly references a raft of international instruments which it hopes to complement. Of particular note is the UNESCO 1970 Convention, which it echoes both loudly and frequently (with its talk of international co-operation, preventive measures and raising awareness). References to due diligence hark back to the UNIDROIT Convention of 1995, which is another source of inspiration for a number of points. As regards Syria and Iraq, of course, sanctions regimes are already in place criminalising the trade in certain objects illicitly removed from those States, though sadly, the looting and illegal trafficking continues.
It remains to be seen whether states will be quick to sign up to the new Convention. The stalling of the Delphi Convention in 1985 and the lukewarm response to UNIDROIT ten years later perhaps do not bode too well. There is no denying, however, that the recent surge in illicit trafficking and cultural property destruction has focussed minds. It is to be hoped that the new provisions will be seen as useful weapons in the fight against cultural property crime rather than yet further layers of impenetrable foliage in an already dense legal jungle. As the champions of the new Convention point out, it is the first of its kind dedicated specifically to matters of criminal law, and this, at least, distinguishes it from the broader legislative landscape for the protection of cultural property. We will follow its progress with interest, hopeful that it proves as effective in its implementation as it has been efficient in achieving adoption within an impressively short space of time.