The Council of Europe Convention on Offences relating to Cultural Property eventually enters into force:  A new tool to the arsenal of international criminal law responses to the trafficking of cultural property

Written by Athina Chanaki and Artemis Papathanassiou 

In the face of the dramatic events taking place over the last few weeks as a result of the ongoing armed conflict in Ukraine, it is hard to trace any positive developments in the field of international law. This being so, taking into account that cultural property is often a target during armed conflicts, either deliberately or as a collateral damage (on the case of Ukraine, see here), the entry into force of the Council of Europe Convention on Offences relating to Cultural Property, on the 1^st of April 2022, should definitely count as a positive one. The Convention entered into force following the deposit of the fifth instrument of ratification with the Secretary General of the Council of Europe. The fifth state to deposit its ratification was Hungary, which followed Latvia, Greece, Mexico and Cyprus.

Although not specifically designed to apply in the event of armed conflict, the Convention was drafted mindful of today’s alarming reality of increasing attacks on cultural property in both peace and wartime. As laid down in its Explanatory Report, it is a criminal law convention aimed at preventing and combatting the intentional destruction of, damage to, and trafficking in cultural property by strengthening criminal justice responses, while also promoting national and international co-operation in this field.

The new Convention was adopted at the Ministerial Session of the Committee of Ministers on 19 May 2017, in Nicosia, Cyprus (hereafter also referred to as the “Nicosia Convention”).

The relevant international legal framework

At an international level, after the Second World War, a range of international legal instruments on cultural property protection were adopted, most of them in the context of UNESCO, including in particular the 1954 Hague Convention on the protection of cultural property in the event of armed conflict and its two Protocols as a part of international humanitarian law and the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the illicit Import, Export and Transfer of Ownership of Cultural Property. In 1995, the Convention on stolen or illegally exported cultural objects, adopted under the auspices of UNIDROIT, addressed the private law aspects of cultural property protection, in the context of its illicit trafficking and trade.

Moreover, in the context of the United Nations, relevant action has been taken both by the General Assembly, through the adoption every three years of the Resolution on “Return or Restitution of Cultural Property to the countries of origin”, (the most recent one is RES/76/16 of 8 December 2021) and the Security Council, by among others the landmark Resolutions 2199(2015),  issued under Chapter VII and recognizing the direct linkage of the destruction and pillage of cultural heritage with the financing of terrorism, and 2347(2017), exclusively devoted to the overall issue of the destruction, pillage and smuggling of cultural property in the course of armed conflicts.

All the forgoing instruments are expressly referred to in the preamble of the new Convention, which, as stated in the Explanatory Report, seeks to operate in harmony with, and build upon, other existing international instruments relating to cultural property.

The negotiating context of the Nicosia Convention

The Nicosia Convention was designed to replace the European Convention on Offences relating to Cultural Property (known as the Delphi Convention), which opened for signature in Delphi, Greece, on 23 June 1985, but never entered into force. The work of preparation of the draft Convention was assigned to the Committee on Offences relating to Cultural Property (PC-IBC), set up by the Committee of Ministers as a subordinate body placed under the authority of the European Committee on Crime Problems (CDPC).

As a criminal law convention, the Nicosia Convention is largely inspired by the “model provisions” for Council of Europe criminal law conventions, elaborated by the CDPC in order to serve as guidance for future negotiators of relevant instruments.

Having said that, the drafting of the substantive criminal law provisions which represent the core of new Convention, has been a delicate task for the PC-IBC. The final text is, indeed, a compromise balancing the opposing interests, on the one hand, of states of origin of cultural property, and on the other, of the so called importing states. The implicit tension between these two opposing groups of states was further nourished by the differences in terms of perspective, priorities and concerns between criminal and cultural law experts, taking part in the drafting process.

The scope of the new Convention and its definition of cultural property

The Convention has been designed to be an open, globally-oriented Convention to protect the common cultural heritage of humanity. Therefore, pursuant to its Article 28, it may be acceded to by third States not members of the Council of Europe, provided that the conditions set out in the said provision are met.

The open-ended nature of the treaty text is also reflected in its scope. Regarding in particular the definition of movable cultural property, it largely draws from the 1970 UNESCO Convention, as it refers to any object, situated on land or underwater or removed therefrom, which is, on religious or secular grounds, classified, defined or specifically designated by any Party to this Convention or to the 1970 UNESCO Convention.

Turning to the definition of immovable cultural property, it is mainly inspired by the 1972 UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage, since, like the latter, it covers “monuments”, “group of buildings”, and “sites”, whether situated on land or underwater, which are, on religious or secular grounds, defined or specifically designated by any Party to this Convention or by any Party to the 1970 UNESCO Convention. This formula has intentionally been used in order to further broaden the material scope of the Convention and thus ensure the broadest possible protection for cultural heritage, including of States not parties to it.

The substantive criminal law provisions

The Convention does not criminalize per se the act of illicit trafficking in cultural property. Articles 3 to 9 address, in turn, theft and other forms of unlawful appropriation; unlawful excavation and removal; illegal importation; illegal exportation; acquisition; placing on the market; falsification and damage to cultural property. However, as outlined in the Explanatory Report, these Articles have been designed to complement each other and thus ensure the criminalization of the different components of the phenomenon of trafficking of cultural property, taking due account of its transnational and multifaceted nature. Moreover, Article 10 deals with the unlawful destruction or damaging of movable or immovable property.

Under the terms of the Convention, States Parties undertake the obligation to ensure that each of the acts described in the above provisions “constitutes a criminal offence under its domestic law”. As stated in the Explanatory Report, the term “ensure” means that Parties may have to take legislative and/or other measures in order to comply with this undertaking, but are not obliged to do so, if their domestic legislation is already in full compliance with the obligations under the Convention. In addition, as the latter only sets a minimum standard, States Parties may go beyond the definition of the offences described therein and criminalize also other forms of conduct.

It is finally important to bear in mind that the offences are punishable when committed intentionally, whereas, regarding the illicit importation, acquisition and placing on the market of cultural property, there is an additional requirement, which is that the offence is punishable only when the offender knew of the unlawful provenance of the cultural property.

Flexibility as an inherent feature of the new Convention

Flexibility in a criminal law convention that seeks to establish minimum uniform standards in order to protect the common cultural heritage of humanity may not seem to be the optimum solution, it was however necessary in order to strike the delicate balance between opposing interests and thus reach the consensus needed for the finalization of the treaty text. This is apparent in three main sets of provisions:

(1) As a general rule, the Convention prohibits reservations, with the exception of those expressly provided for in certain provisions. Regarding in particular Article 4, which inter alia provides for the criminalization of the act of excavating on land or underwater in order to find and remove cultural property without the required authorization and before the removal takes place, it is stipulated that any State may, when signing or depositing its instrument of ratification, acceptance, approval or accession, reserve the right to provide for non-criminal sanctions, instead of criminal sanctions.

Taking into account that, as a matter of principle, the criminalization of unlawful excavations was very important for states of origin of cultural property which have long suffered from the activity of clandestine diggers, this type of reservations was the price to pay in order to reach consensus.      

(2) A second type of reservations permitted under the Convention are those, whereby a State Party may reserve the right not to apply or to apply only in specific cases or conditions the whole or part of the relevant provisions. For example, under the jurisdictional rules contained in Article 12, a State Party may by means of a similar declaration reserve the right not to establish, or to establish only in specific cases or situations, jurisdiction over the criminal offences referred to in the Convention, when the offence is committed by one of its nationals.

(3) Further evidence of flexibility can be found in the treatment, under paragraph 2 of Articles 7 and 8, of the due diligence obligations incumbent upon persons, such as professional art dealers, auctioneers and collectors, who are expected to exercise a higher degree of care. While knowledge of the unlawful provenance of the cultural property is an essential element for the criminalization of the offences described therein, these provisions also provide for the possibility that certain categories of persons who should have known of unlawful provenance but failed to exercise an appropriate level of due care and attention, may be held responsible. In counterbalance, the drafters of the Convention softened the language used and, instead of the mandatory “shall ensure” used elsewhere, it is provided that States Parties “shall consider taking the necessary measures to ensure…”.

Conclusion: The added value of the new Convention

Cultural property is among the priceless and irreplaceable inheritance not only of each nation but also of humanity as a whole. Conscious of this, the drafters of the Nicosia Convention wished to emphasize the importance of concerted international action as key to addressing the recurrent problems posed by the violation of the national and international norms on the protection of cultural heritage, while setting out substantive criminal law provisions which are aimed at addressing the serious challenges posed by the involvement of organized crime and terrorist groups in the trafficking and destruction of cultural property. While the 1999 Second Protocol to the 1954 Hague Convention also provides in its Chapter IV for the criminalization of specific acts against cultural property, when committed intentionally, it only applies in the event of armed conflict. On the contrary, the Nicosia Convention is the first international legal instrument dedicated exclusively to criminal law issues, through combatting a range of crimes against cultural property. And there lies its added value. A value, solemnly reaffirmed by the above mentioned UN General Assembly Resolution 76/16, which, in its operative paragraph 20, welcomed the adoption of the Nicosia Convention and invited the UN Member States to consider becoming parties to it.

With the entry into force of the Convention a major milestone has been reached. The next milestone is the deposit of the tenth instrument of ratification which is necessary in order to allow the first meeting of the Committee of the Parties, i.e. the monitoring mechanism established by the Convention, to take place.

The views expressed by the authors are strictly personal and do not engage the Greek Foreign Ministry or any other governmental institution.

This article was published in EJIL:Talk!, the Blog of the European Journal of International Law

Athina Chanaki is Legal Counsellor at the Legal Department/Public International Law Section of the Ministry of Foreign Affairs of the Hellenic Republic. She is also member of the Athens Bar Association. She holds a Master’s degree in International Law and the Law of International Organizations from the University of Paris 1, Panthéon-Sorbonne, as well as a PhD from the same University, in cotutelle with the National and Kapodistrian University of Athens, on L’adaptation des traités dans le temps (Brussels, Bruylant, 2013). She participated, as representative of Greece, in the work of Council of Europe Committee on Offences relating to Cultural Property (PC-IBC), which prepared the draft of the Nicosia Convention, and contributed as speaker or moderator to international conferences organized for its promotion.

Artemis Papathanassiou is Attorney at Law and Senior Legal Adviser at the Ministry for Foreign Affairs of Greece. She is specialized (PHD) in Public International Law. As a Legal Adviser at the Greek Ministry of Foreign Affairs, she specializes on issues of international law and, in particular, on issues of international terrorism, international space law and international cultural property law. She is the Coordinator of the negotiations within the UN General Assembly for the elaboration of the UNGA Resolution “on the Return or Restitution of Cultural Property to the Countries of Origin”, introduced every three years. She is former Chairperson (2014-2016) of the Committee for the protection of cultural property in the event of armed conflict (Second Protocol to the 1954 Hague Convention) and former Chairperson (2011-2012) of the UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation (ICPRCP). She is author of several articles on issues of international cultural property law.