Getting the UNIDROIT Convention all wrong

In a disappointing article today in the International Herald Tribune/NYT Global Edition, Souren Melikian manages to royally confuse anyone not familiar with the 1995 UNIDROIT Convention. Though Mr. Melikian has been a long time art editor of the International Herald Tribune, he appears to have a limited understanding of the UNIDROIT Convention. He spends a great deal of time discussing the beauty and merit of antiquities up for auction, but misses the point of the flawed antiquities trade. Instead he should have focused on the history of these objects and the due diligence required by purchasers.

As I've written elsewhere, the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (“UNIDROIT Convention”) was an ambitious effort aimed at harmonizing the private laws of various states so as to reduce the harmful effects that occur when laws conflict. It established common rules for the restitution and return of cultural objects between states party to the Convention.  At present there are twenty-nine states party to the Convention. The UNIDROIT Convention primarily seeks to return objects to their original private owner.  It attempts to fill the gaps in the UNESCO Convention by firmly placing regulatory efforts on the market end of the illicit supply chain. It recognizes the inherent difficulty in relying on developing nations to police their own borders and archaeological sites.  UNIDROIT creates a uniform law which requires cultural property to be returned even if a theft cannot be firmly established. It also allows for a private right of action. Its major focus is the harmonization of private international law. It produced a number of excellent and innovative approaches to the problem. Unfortunately, a number of fatal flaws render its widespread application in most major art-market states highly improbable.

Immediately after its completion, the UNIDROIT Convention was met with a great deal of criticism, especially among art and antiquities dealers. The European Fine Arts Foundation threatened in 1996 to move its fairs away from Basel and Maastricht if Switzerland or the Netherlands ratified the Convention. James Fitzpatrick argued that dealers, collectors and museums could find themselves constantly in court in expensive . . . time-consuming, distracting and debilitating litigation.” Much of this criticism seems unfair and exaggerated, but it would not be a surprising reaction to any effort to seriously modify the art trade.

The best way to understand the UNIDROIT Convention may be to compare it with the 1970 UNESCO Convention. The UNESCO Convention allowed only states party to the Convention to request restitution of stolen or illegally exported objects; the UNIDROIT Convention remedies this oversight by allowing private parties to initiate restitution. Secondly, UNIDROIT attempts to remedy problems with UNESCO’s treatment of undiscovered antiquities. Third, the UNIDROIT Convention applies to unlawfully excavated, or lawfully excavated but unlawfully retained, objects. Unlike the UNESCO Convention, it does not require museum certification or cataloguing by a source nation. Lastly, UNIDROIT provides that a bona fide purchaser of stolen objects will not receive good title. The purchaser must instead return the object, and is entitled to “payment of fair and reasonable compensation,” provided she had no knowledge of the object’s prior theft and exercised due diligence when the object was purchased. This important good faith requirement could act to deter illicit trade, by requiring each purchaser to police their own acquisitions.

The UNIDROIT Convention introduced three significant changes which could have a beneficial impact on the illicit trade in cultural property. First, it provided that good-faith purchasers or acquirers of stolen or illegally exported cultural objects, who have exercised due diligence but who are required to return the objects, are entitled to compensation upon their return. Second, it attempted to limit and describe the situations in which a buyer can claim to have exercised due diligence. Finally, it set out and defined a limited right of return for illegally exported objects.

The biggest provision preventing states from signing on to the Convention is, Article 18 provides, “No reservations are permitted except those expressly authorized in this Convention.” This means that States Party are unable to pick and choose which provisions they accept, making it an international legal instrument with real teeth, and also one that many states are unwilling to sign on to.

1. Souren Melikian, Antiquities Auctions: Unidroit Convention Drives Up Prices, The New York Times, December 17, 2010, http://www.nytimes.com/2010/12/18/arts/18iht-melik18.html?_r=3&ref=arts&pagewanted=all (last visited Dec 17, 2010).
2. Derek Fincham, How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property, 32 Colum. J. of L. & the Arts 111 (2008).  

My Article on Conflict of Laws and Cultural Property

I have posted on SSRN the final version of my paper titled How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property, 32 Columbia Journal of Law and the Arts 111.

Pictured here is a Byzantine mosaic from the Hagia Sophia in Istanbul, similar to the mosaics taken from Northern Cyprus which gave rise to the Goldberg suit. The Seventh Circuit Federal Court of Appeals upheld the default—and problematic for cultural property disputes—lex situs rule in holding “Indiana law and rules govern every aspect of this action, from the statute of limitations issues through the application of the substantive law of replevin.” The trial court had noted that although Switzerland was the location of the wrongful activity, it bore little connection to the cause of action. None of the parties or important actors was Swiss; the mosaics had never been in the stream of commerce in Switzerland; and they had only been on Swiss soil for four days. The jurisdiction with the closest connection to the objects was Cyprus, not Indiana. After all, the mosaics had been firmly fixed to the church for over 1400 years. Although it would therefore make sense to give concessions in the law to jurisdictions such as Cyprus, courts have shown a hesitancy to apply the law of the source nation, or lex originis.

Here is the abstract:

The International trade and transfer of art and antiquities faces problems because nations have erected very different rules with respect to movable property. All nations forbid theft, however most cultural property disputes involve an original owner and a subsequent good faith possessor. Different jurisdictions have chosen to allocate rights and responsibilities between these two relative innocents in very different ways. Disharmony in the law is seldom a good thing, but in the realm of cultural property it can be particularly damaging to the interests of nations, museums, individuals, and our collective cultural heritage. The lack of harmony ensures no overarching policy choices will be furthered, which prevents parties from anticipating legal outcomes and giving substance to policies.

This article explores the default conflict of law rules which are applied to cultural property, and shows how the lex situs rule exploits the various legal rules which apply to art and antiquities. It challenges the lofty position enjoyed by the lex situs rule and proposes a radical reform of the default choice of law analysis. By employing the law of the Nation of Origin or lex originis courts can ensure the jurisdiction with the most tangible connection to an object enjoys the benefit of applying its legal rules to a given dispute. This will not only ensure the security of art and antiquities transactions, but impart much-needed transparency into the cultural property trade, and finally will decrease the theft and illegal excavation of art and antiquities.

The article begins by presenting some examples of recent disputes, and the problems they present for the law and cultural heritage policy. Section II describes the fundamental difficulty of adjudicating claims between two relative innocents, and the disharmony which has resulted as different jurisdictions have resolved this conundrum in very different ways. Section III lays out the ways in which private international law impacts art and antiquities disputes. Section IV analyzes the 1995 UNIDROIT Convention, the most recent attempt to harmonize the law affecting cultural property. Section V proposes a radical reform of the choice of law enquiry taken by courts.

Keywords: art, antiquities, private international law, conflict of laws, international law, lex originis, lex situs, renvoi, art theft, antiquities, cultural heritage, cultural property

I'd be delighted to hear any reactions to the work at derek.fincham "at" gmail.com.