This article was originally published in The Times, 5 May 2022, and can be found here.
New international convention to create criminal law sanctions to protect cultural property
Somewhat unnoticed by the art market and the legal community, the Council of Europe Convention on Offences relating to Cultural Property (also known as the “Nicosia” Convention) entered into force on 1 April 2022. The Convention has been open for signature since 2017 but has so far been signed and ratified by only five members of the Council of Europe and one non-member state. Most of the countries that have adopted the Convention are source countries, including Cyprus, Greece, Italy and Mexico, from which antiquities originate, and which have an inherent interest in protecting their cultural heritage.
The Convention complements a number of existing international legal instruments aimed at protecting cultural heritage, including the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict (together with protocols), the 1970 UNESCO Convention, and the 1995 Unidroit Convention. Where it differs from these other instruments is that it aims to provide a criminal justice response to cultural heritage protection: it establishes specific criminal offences, such as theft and other forms of unlawful appropriation, unlawful excavation and removal, illegal importation and exportation, and illegal acquisition and placing of artefacts on the international art market.
The United Kingdom remains a member of the Council of Europe (not to be confused with the European Union) but has so far neither signed nor ratified the Convention although the UK does already have national sanctions regimes in place, criminalising the trade in certain objects illicitly removed from Syria and Iraq.
The illegal excavation, damage to and trafficking of cultural objects has been a growing problem internationally in the context of conflicts in places such as Iraq, Afghanistan and Syria. The objective of the Convention is therefore both laudable and necessary. One of the underlying ideas is that it will be easier for participating countries to cooperate across borders in investigating and prosecuting offense, and in enforcing rules for the protection of cultural property, if these rules are harmonised internationally.
However, in order to be effective, the Convention will need to be more widely adopted, not only by source countries but also by destination countries of illegally excavated and trafficked cultural objects. Without real commitment, resourcing, action and effective cooperation by national authorities from key art market players such as the UK, the US, China, and some European countries, success in protecting cultural success will ultimately remain elusive. While the Convention will hopefully strengthen and add to the protection of cultural property in the long run, for now, the looting and illegal trafficking of cultural heritage objects unfortunately continues.