The Misguided Quest: The Clear Case against UNIDROIT

Publication Date01 Mar 1996
DOIhttps://doi.org/10.1108/eb025756
Pages54-59
AuthorJames F. Fitzpatrick
CULTURAL PROPERTY AND ART THEFT
The Misguided Quest: The Clear Case against
UNIDROIT
James F. Fitzpatrick
Journal of Financial Crime Vol. 4 No. 1 Corruption
The purpose of this article is to give a perspective
on the latest attempt, via a multinational agree-
ment, to limit and control the international trade
in cultural artifacts. The scope of the proposed
UNIDROIT agreement goes well beyond the sub-
ject matter of the conference 'Art Theft and its
Control'.1 This is not an international instrument
whose primary focus relates to stolen objects. On
this subject, there is a broad consensus, although
civil law countries still provide greater deference to
purchasers' rights over possessor's rights.
Rather, the most controversial elements of the
UNIDROIT agreement deal with:
a radical new proposal rejecting established law
in Europe and the United States and elsewhere,
which would require the international enforce-
ment of an individual nation's export control
laws.
a new international recognition, with judicial
enforcement rights, of ownership (patrimony)
statutes in which a nation can claim ownership
of all its cultural property whether or not such
objects have ever been in public hands.
an agreement that is tilted sharply in favour of
source nations, which would encourage the
most restrictive retention policies imaginable.
Thus,
the controversy that attends UNIDROIT
arises largely because of the very fact that it
impacts, harshly and comprehensively, on inter-
national commerce that has nothing to do with
traditional instances of stolen property.
It is clear that there has been immense energy
and attention over many, many years that
went into the development of the UNIDROIT
proposal. There are hundreds and hundreds of
pages of explanatory text describing the evolution
of this draft. It is clear that the nations involved
have been attempting to reconcile the irreconcil-
able,
at least in a prohibitory international agree-
ment such as this. They have tried to compromise
between the sharply differing interests of market
and source countries on the issue of cultural prop-
erty.
Nevertheless the result is a proposal that is pro-
foundly, fatally, flawed. This is a misguided
attempt to find a fair balance between the interests
of source countries, which essentially want to pro-
hibit all trade in cultural objects which might have
been found in their country, and those of market
countries whose approach attempts to take into
account the legitimate interests of museums, their
audience and scholars who work there in an
attempt to both preserve and present a view of the
world's great and varied cultures.
Indeed, this extended exercise in the devlop-
ment of UNIDROIT raises a real question
whether this type of international effort based
on prohibitory instincts will ever have success.
The dilemma is whether the interests and energy
of those willing to work for a more balanced
approach would not be better directed to increas-
ing support of existing international instruments
like the UNESCO convention of 1970, as well as
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