BILATERAL NEGOTIATIONS

The three cases pending before the Committee were discussed:

1. 1. The Parthenon Marbles (Greece, United Kingdom, and the British Museum)

2. 2. Boğazköy Sphinx (Turkey, Germany, and the Berlin Museum)

3. 3. The Makonde Mask (Tanzania, Switzerland, and Barbier-Mueller Museum)

Statements by the delegations of the Greece and the United Kingdom restated old positions. In the adopted Recommendation 1, however, it appears there is hope for future fruitful negotiations. Besides, a consensus emerged: The objects are henceforth to be referred to as Parthenon Sculptures, thus abandoning the old terms of Parthenon Marbles and Elgin Marbles.

Both Turkey and Germany agreed to further negotiations on the return of the Boğazköy Sphinx.

The delegation of Tanzania reported the return of the Makonde Mask to Tanzania following successful negotiation with the Barbier-Mueller Museum, Switzerland, under the auspices of the International Council of Museums (ICOM). The agreement refers to the return as being a “donation”!

Perhaps we should not waste words with regard to the act being a donation, because the important thing is that the mask is in its rightful place. In the past requests for return have been met by way of donation even after litigation has started. Thus in the case of a garland sarcophagus lent to the Brooklyn Museum, the private lender of the sarcophagus, appeased Turkey, by donating the $11 million artifact to the American-Turkish Society. The American-Turkish Society subsequently sent the garland sarcophagus back to Turkey, the plaintiff country, where it remains on indefinite loan. Similarly, the Metropolitan Museum of Art, New York, returned the Lydian Hoard collection to Turkey after litigation had commenced in response to the alleged blackmail of a potentially successful lawsuit.

DRAFT RULES OF PROCEDURE ON MEDIATION AND CONCILIATION

The consideration of the Draft Rules of Procedure on Mediation and Conciliation, particularly draft articles 4 and 7, occupied almost a day. This is rightly so in view of the increasing important role mediation plays in the return or restitution of stolen or illegally exported cultural property to its countries of origin.

The issue of the use of alternative dispute resolution methods for the resolution of cultural property disputes under the aegis of the committee first came up for discussion at the third session of the committee held in Istanbul Turkey 9–12 May 1983. Salah Stetie, the chairperson of the first three sessions of the committee had commented that “[i]f at the end of … one year [of negotiation] the Committee felt that the position of the holding country was unjustified, it could extend its good offices or perhaps arbitrate in order to find an acceptable solution.” Several members then took the floor to stress that the method of bilateral negotiations must be respected absolutely. One member stated that it was impossible for his country to accept the idea of “arbitration” on the part of the committee, for the role of the latter was one of mediation only. “To arbitrate would be to support the position of a particular country.” It was not for the committee to pass judgment in such a manner, but rather to analyze the reasons for the failure of an attempt to obtain a return or restitution through bilateral channels. The chairperson was quick to respond that he had referred to arbitration “in a general way.” The committee could only bring together people of good will eager to find workable solution: “its path was that of mediation and moral pressure.”

PREPARATION OF MODEL PROVISIONS DEFINING STATE OWNERSHIP OF CULTURAL PROPERTY

Based on signals given at the 15th session, the Secretariats of UNESCO and UNIDROIT formed a committee of experts to produce draft model provisions defining state ownership of cultural property. Many members of the committee, however, were unhappy that the experts committee was empaneled without express directive from it. In the end through Recommendation 3, the committee approved the setting up of the experts committee to prepare draft model provisions with explanatory guidelines to be made available to states to assist them in the drafting or strengthening of national laws.

THE UNESCO CULTURAL HERITAGE LAWS DATABASE

The UNESCO Cultural Heritage Laws Database is an innovative tool that continues to be developed. It is now an informative tool for states in improving their national laws. It is also a boon to researchers.

THE UNESCO RETURNED CULTURAL PROPERTY DATABASE

The Secretariat made the revelation of a new database intended to catalog the return or restitution of cultural property. This should eventually become a moral instrument that would encourage holding states to follow the part of honor and restitute.

INVENTORIES

Recommendation 6 in part reminds and encourages states to reinforce their national policies regarding inventories of movable cultural heritage, notably concerning museums, cultural institutions, cultural sites (in particular of an archaeological nature), and places of worship. The absolute importance of this advice cannot be overemphasized. African countries that tend to be slack on installing the state of the art inventories should take note and act accordingly with utmost speed.

UNIDROIT CONVENTION UNDER ATTACK

After 15 years only 30 countries so far have joined the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. Two speakers on behalf of the art market and some delegations spoke in unfavorable terms concerning the UNIDROIT Convention. Certain provisions of the convention certainly do not endear themselves to the art market and market countries. I am however comforted by the remarks of the director general of UNESCO in 1995 who, soon after its adoption, described the UNIDROIT Convention as a “breakthrough international framework to combat private-sector transactions in stolen art and cultural property” and “a watershed in our common struggle to defend cultural property.”Footnote ² In spite of the attacks against it, the convention has forced many market countries to endorse UNESCO 1970 Convention. Faced with the choice of ignoring the two conventions, market countries have, in my opinion, been persuaded to adopt the lesser evil. For example, the 1999 Report of the Swiss Working Group that considered whether Switzerland should ratify the UNESCO and UNIDROIT Conventions concluded that should Switzerland fail to ratify, the country would become more attractive as a hub for illicit trade of stolen and illegally exported cultural objects, and “we can reasonably expect that a growing number of shady transactions will not promote a positive image of Switzerland abroad.” In 2003 Switzerland adopted the 1970 UNESCO Convention. Other European market countries that have joined the 1970 Convention since 1995 are France (1997), the United Kingdom (2002), Denmark (2003), Sweden (2003), Germany (2007), Norway (2007), Belgium (2009), and the Netherlands (2009). Of these only Norway (which is not a particularly huge art market country) is a member of the UNIDROIT Convention having joined in 2002. Italy (2000), Spain (2002), Portugal (2003), and Greece (2008), all both source and market countries, are members of the UNIDROIT Conventions. Meanwhile, in 1983 the United States joined the 1970 UNESCO Convention, and immediately followed membership with its hugely beneficial 1983 Cultural Property Implementation Act.

My African background compels me to mention that sadly, only two African countries (Gabon and Nigeria) have joined the UNIDROIT Convention. With regard to the earlier 1970 convention, just 27 out of 53 African countries members of the United Nations are states parties. By all accounts, African countries appear to be the most vulnerable of any group of countries with regard to stealing and illicit trade in cultural property.

AWARENESS CAMPAIGN AND LINKS WITH THE ART MARKET

The speakers representing the art trade spoke in discordant notes. While the two speakers from Sotheby's and Christie's were conciliatory and showed empathy for the work of the committee, other speakers were less understanding. In fact two vigorously attacked the UNIDROIT Convention as if it were a rogue elephant, rather than an instrument that complements the 1970 Convention. “Together the two Conventions,” as Lyndel Prott very well put it, “close many of the loopholes that had prevented courts from combating more forcefully the illegal trafficking of cultural objects.”Footnote ³ One wonders what the International Code of Ethics for Dealers in Cultural Property 1999 is all about! Are these codes of ethics merely meant to present a positive image of the associations? I cannot help but recall the observation of Clemency Coggins, that the significance of these self-denying ordinances by museums and art dealers associations is probably that they should have been made at all.Footnote ⁴

CELEBRATION OF THE 40^th ANNIVERSARY OF THE 1970 CONVENTION

It was agreed that the 40th anniversary of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property should be marked at the end of the year. It may be recalled that 10 years ago, the 30th anniversary was marked at the UNESCO headquarters.

PERIODICITY OF THE COMMITTEE'S MEETINGS

There was a protracted debate whether the committee should meet again next year or wait till 2012. In the end there was consensus that the committee could meet in 2011, if the director general of UNESCO provides the wherewithal to hold the meeting. This is reflected in Recommendation 5.