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"The Protection of Cultural Assets" - Memorandum

The results of the symposium

"Protection of cultural assets: International Experience and Perspectives"

(22 - 24 May 2006, Hamburg)

Organiser: Cultur Cooperation e.V.

 

 

 

Criticism of the draft law for the implementation of the UNESCO Convention1

 

  • The draft2 as presented in its current form is insufficient and must be reworked as a matter of urgency.

 

  • The listing procedure is impracticable in the manner planned because it a) requires of the signatory states that they list all cultural assets worthy of protection (§6(2)2), and b) that these lists must be published in the German Federal legal gazette in their entirety (§14), before the law can be applied. In this the draft law as presented violates the right of the signatory states laid down in the Convention to determine independently which national cultural assets are to be subject to the protection afforded by the implementation of the UNESCO Convention (Art. 1 UNESCO Convention).

 

  • The draft law as presented is useless for the protection of archaeological finds, as objects which are still under the earth by their very nature cannot be listed (§1(3)).

 

  • In the case of the obligations to keep records as required by the draft law of the art trade (§18), details of the origin are only required "insofar as they are known". As the origin of an object is the central question which the trade has to clarify particularly in the interests of the customer buying in good faith, the regulation presented by the lawmakers is completely unsatisfactory. Even additional bureaucratic effort, for example to meet the duty to provide a photograph of the objects3, is slight in comparison to the damage caused by illegal trading in and the loss of cultural assets.

 

  • The regulation of the obligations of the art trade to keep records (§18) is misleading and unclear. A clear formulation must be found to include all cultural assets according to the spirit of the UNESCO Convention (Art. 1).

 

Evaluation of the results

 

  • The draft law in its present version is not suitable to improve the protection of cultural assets in Germany and in relationship to the signatory states in a sustainable manner.

 

  • The draft law as presented fails to implement central aims of the UNESCO Convention (Art. 2, Art. 3).

 

  • The scope contained in the convention was interpreted in a very one-sided fashion to the benefit of the art trade. This is made clear in the concessions concerning the obligations to keep records (§18), the regulation of the burden of proof (§13(3)) and listing procedures (§6(2)2 und §14).

 

  • It is incomprehensible that 35 years after the passing of the UNESCO Convention the government presents a draft law for ratification, the central points of which fall behind the guidelines to which the museums and the art and antiques trades have already made voluntary commitments.4

 

  • Determined protection of cultural assets cannot be realised until the burden of proof has been reversed in accordance with the ratification of the UNIDROIT Convention of 1995.5 The next step necessary is the implementation of the UNIDROIT Convention, which extends the range of claims to restitution. As the reversal of the burden of proof has already been practised in the protection of species for a long time, it should be possible to apply this to the protection of cultural assets, too.

 

  • If the German government seriously wishes to combat the illegal trade in the cultural heritage of the signatory states to the UNESCO Convention, the draft law which has been presented should be corrected in its central points. In addition, effective instruments are required to promote the necessary international cooperation and to bring questions concerning the protection of cultural asset to the attention of the public.

 

1 Draft of a law for the implementation of the UNESCO Convention of 14 November 1970 on measures to prohibit and prevent the illegal import, export and trade in cultural assets

2 Publication 16/1371 of the German Federal Parliament of 04.05.2006

3 inter alia recommendation of the Federal Upper House, see Publication 16/1371 of the German Federal Parliament, Annex 2

4 ICOM Ethical Guidelines for Museums (www.icom-deutschland.de/kodex.htm), Code of Conduct of the German Art Trade Association e.V. (www.deutscherkunsthandel.com)

5 UNIDROIT Agreement on stolen or illegally exported cultural assets of 1995

 

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