A few Comments on the CoE: 'Convention on Offences relating to Cultural Property'

It is gratifying to note that artefact hunters, collectors and dealers are going to have to buck their ideas up if and when the Nicosia, 2017 'Council of Europe Convention on Offences relating to Cultural Property' gets incorporated into national legislations:  

Chapter II – Substantive criminal law
Article 3 – Theft and other forms of unlawful appropriation
Each Party shall ensure that the offence of theft and other forms of unlawful appropriation as set out in their domestic criminal law apply to movable cultural property.

Fair enough, eh? But look at what that entails in articles 4-8:

Article 4 – Unlawful excavation and removal
1. Each Party shall ensure that the following conducts constitute a criminal offence under its domestic law, when committed intentionally:
a. the excavation on land or under water in order to find and remove cultural property without the authorisation required by the law of the State where the excavation took place;
b. the removal and retention of movable cultural property excavated without the authorisation required by the law of the State where the excavation took place;

The consequence of that is that the holder of such items will now have to be able to show that the authorisation exists for that particular object (as Farmer Brown and I have been saying for a while now, each artefact in a collection made by an artefact hunter needs to be signed over by the relevant landowner in the case of England and Wales). Archaeologists are not exempt either:

c. the unlawful retention of movable cultural property excavated in compliance with the authorisation required by the law of the State where the excavation took place.

Then we have a pretty innovative one which goes one step further than the 1970 UNESCO Convention:

Article 5 – Illegal importation
1. Each Party shall ensure that, when committed intentionally, the importation of movable cultural property, the importation of which is prohibited pursuant to its domestic law on the grounds that it has been:

a. stolen in another State;
b. excavated or retained under circumstances described in Article 4 of this Convention; or
c. exported in violation of the law of the State that has classified, defined or specifically designated such cultural property in accordance with Article 2 of this Convention,

constitutes a criminal offence under its domestic law where the offender knew that the cultural property had been stolen, excavated or exported in violation of the law of that other State.

The next one refers more directly to the 1970 document:

Article 6 – Illegal exportation
1. Each Party shall ensure that the exportation of movable cultural property, if the exportation is prohibited or carried out without authorisation pursuant to its domestic law, constitutes a criminal offence under its domestic law, when committed intentionally.
2. Each Party shall consider taking the necessary measures to apply paragraph 1 of the present article also in respect of movable cultural property that had been illegally imported.

I am not clear where the latter differs from Art. 5 - except that the term 'where the offender knew...' is absent. 

Article 7 – Acquisition
Each Party shall ensure that the acquisition of movable cultural property that has been stolen in accordance with Article 3 of this Convention or has been excavated, imported or exported under circumstances described in Articles 4, 5 or 6 of this Convention constitutes a criminal offence under its domestic law where the person knows of such unlawful provenance [....] also in the case of a person who should have known of the cultural property’s unlawful provenance if he or she had exercised due care and attention in acquiring the cultural property.

Article 8 – Placing on the market
Each Party shall ensure that the placing on the market of movable cultural property that has been stolen in accordance with Article 3 of this Convention or has been excavated, imported or exported under circumstances described in Articles 4, 5 or 6 of this Convention constitutes a criminal offence under its domestic law where the person knows of such unlawful provenance [...] also in the case of a person who should have known of the cultural property’s unlawful provenance if he or she had exercised due care and attention in placing the cultural property on the market.

Article 9 – Falsification of documents
Each Party shall ensure that the making of false documents and the act of tampering with documents relating to movable cultural property constitute criminal offences under its domestic law, where these actions are intended to present the property as having licit provenance.

Tampering with of course could also mean getting rid of (thus not having) awkward documents.

Chapter IV – Preventive measures and other administrative measures
Article 20 – Measures at domestic level
Each Party should, taking into account its obligations under applicable international treaties, consider taking the legislative and other necessary measures to: [...]
c. introduce due diligence provisions for art and antiquity dealers, auction houses and others involved in the trade in cultural property, and introduce an obligation to establish records of their transactions. These records should be made available to the competent authorities in accordance with domestic law;

This will cut out all those 'orphan objects' suddenly 'surfacing' on the market apparently from nowhere.Provision should have been made here for archiving the records of dealers going out of business. These measures should also cover the activities of metal detectorists and others selling artefacts (including coins) on eBay - and how to define 'cultural property' in the case of some of the objects they sell? (eorge III cartwheel pennies anyone?)

d. establish a central national authority or empower existing authorities and putting in place other mechanisms for co-ordinating the activities related to the protection of cultural property;
e. enable the monitoring and reporting of suspicious dealings or sales on the Internet;

and here's the one that would have hurt in England and Wales if they were not Brexiting...

f. enable the mandatory reporting to the competent authorities of the discovery by chance of cultural property of the archaeological heritage;

There would be no more 'voluntary reporting' for British artefact hunters then. That would be a good thing as most of them take a lot of stuff without any kind of reporting and recording. Sadly, no mention is made here of any sanctions against non-reporters (which is a mistake). The convention proposes that states:

g. promote awareness-raising campaigns addressed to the general public about the protection of cultural property and the dangers posed by the crimes against it;

That would have been a job for the PAS in pre-Brexit Britain. Fortunately they'll be saved the intellectual effort by leaving the EU and letting the rest of us get round to civilising our artefact hunters.

j. encourage internet service providers, internet platforms and web-based sellers to co-operate in preventing the trafficking of cultural property by participating in the elaboration and implementation of relevant policies;

And if they don't? Let us make them responsible under article 8.

k. prevent free ports from being used for the purpose of trafficking of cultural property [...]

Oh yes.

One feature of this text is interesting, the source country of the cultural property concerned does not have to be a party of the Convention for charges to be brought on importers in a country which is.

I think the general problem of this text is that it is so firmly based on the UNESCO text of 1970 with all that this entails, above all, the latter reflected the antiquities market of the previous decade and is ill-fitted to be applied to the market that has been developing since the 1990s. This means that the CoE's efforts are equally wozzy on the details. While this convention is of course a vast advance on the free-for-all we have now, it is quite obvious that an attempt should have been made to step outside the box of the 1970 Convention and write something more fitted to our own times.

Fortunately there is an article which allows for the modification of the Convention to keep up with developments in the market - let us hope they all go in the direction of strengthening the protection it affords rather than weakening it.

Vignette: Dealer Swiss Tony