Authorde Gaetano, Nicholas

Heritage is the source of national identity. Any cultural object (2) that can be connected to Malta's art or to Malta's history, or that has been situated within the territory of Malta for an extended period of time, has a role in illustrating what the term 'Maltese' means. For this reason alone such objects should be afforded the highest level of protection by Maltese law. In fact, Article 41 of the Cultural Heritage Act of the Laws of Malta (3) (hereafter 'the Act') provides that "no person may export or re-export any cultural property without the written permission of the Superintendent". Moreover, the Superintendent also has the right to exercise pre-emption over cultural objects on the behalf of the State in relation to the sale of any cultural property "in preference to all others on equal conditions including consideration as that concluded between the parties". This right, established by Article 40 of the Act, refers to the Government's power to expropriate and thereby compulsorily acquire any cultural object that is the subject of any "[public or private] sale, export, exchange, emphyteutical grant or lease" "in preference to all others on equal conditions including consideration as that concluded between the parties". This right may be exercised within two months from the date on which any one of the parties notifies the Superintendent about any of the events mentioned above, or from the date when the Superintendent becomes aware of the said events occurring, whichever is the earlier. Article 3 of the Act establishes which types of cultural property fall within the powers of the Superintendent, and reads as follows:

For the purposes of this Act, an object shall not be deemed to form part of the cultural heritage unless it has existed in Malta, including the territorial waters thereof, or in any other country, for fifty years, or unless it is an object of cultural, artistic, historical, ethnographic, scientific or industrial value, even if contemporary, that is worth preserving. The motive behind this all-encompassing approach is immediately clear and well-founded: by ensuring that these cultural objects remain easily accessible to the Maltese, the national identity of Malta is nurtured and its development remains traceable. However, it may be argued that the impact of this approach leads to two unnecessary drawbacks that have the combined effect of hindering this motive, and it is for these two reasons that this article was written.

The Act does not establish the criteria that would guarantee that once a cultural object is imported into Malta, its exportation will be permitted. This has acted as a strong deterrent for anyone who wishes to import a cultural object into Malta, and has caused what may be referred to as 'cultural stagnation' in Malta. The absence of such criteria:

paralyses the dialogue that can be made between Malta and the rest of the world [...]. It denies people access to international art and enforces insularity. [...] It [also] hinders the development of the Maltese art scene. (4) To illustrate this point, one may consider the following hypothetical example. If the 2016 purchaser of the Meule (5) by Claude Monet (French, 1840-1926) had been a person situated in Malta, or a person whose intention it was to relocate to Malta, he would have thought twice about importing his $81.4m acquisition into Malta. The reason is that as soon as his French painting from New York crossed into Malta's territorial border, Article 3 of the Act would have immediately classified it as forming part of the cultural heritage of Malta, and on this basis alone the Superintendent would have acquired the right to permanently refuse to issue an export licence and even pre-empt it. In a bid to prevent this from occurring, the purchaser would have instead imported his painting into other countries such as France, Monet's own homeland, or the UK, since their respective export regimes would have guaranteed that he would be allowed to re-export his painting again from their respective territories should the need arise. (6)

Another important consequence of any tight, all-encompassing export regime is the "stronger [...] pressure to form an illicit market". (7) Indeed, as Quentin Byrne-Sutton has observed, the result of an export control that seeks to protect any and all cultural objects is "a ridiculous situation in which regulation nourishes what it seeks to eliminate." (8)

In the case of Malta, such incidents of smuggling invariably include either cultural objects that are connected to Malta's art or history, or cultural objects that have been situated in Malta for an extended period of time; paradoxically, these are the cultural objects that should be the true concern of Malta's heritage laws. Therefore, the current Maltese legislation not only fails to ensure that the identity of Malta is nurtured, owing to the cultural stagnation that it causes, but also fails to ensure that its development remains traceable, because of the smuggling that is encouraged by its own over-restrictiveness. This article is an attempt toward suggesting amendments to the Maltese Cultural Heritage Act with the aim of mitigating the effects of the current all-encompassing approach.

To date, no international agreement explicitly establishes the right to export cultural objects from the territories of States Parties. Nevertheless, it can be argued that the 1970 UNESCO Convention (9) and the 1995 UNIDROITConvention (10) implicitly acknowledge this right--by prohibiting and providing a remedy against the illicit exportation of cultural objects, they recognise that the right to lawfully circulate cultural objects should exist. This suggestion would be in the spirit of the Preambles to both of these Conventions. (11) The outcome of such a debate, however, would have little effect on the conclusions of this article since Malta is one of the handful of countries that have not yet ratified either of these international agreements. It is worth noting that as a consequence Malta is not entitled to compel a non-EU Member State (12) to facilitate the return of illicitly exported items, but may subject the exporter only to a fine or to imprisonment or to both in accordance with Maltese law. (13)

On the other hand, Malta has been a member of the European Union since 1 May 2004, and is thus bound to adhere to its laws. Among the most important of these is the constitutional backbone of the EU itself: the Treaty on the Functioning of the...

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