Striking a fair balance between cultural heritage protection and private ownership through shared responsibility

Abstract

The 1995 UNIDROIT Convention is one of the only international cultural heritage conventions that have a direct impact on the owners of cultural objects. By contrast with the 1970 UNESCO Convention which focuses on public law and needs to be implemented by the Member States in order to be effective, the UNIDROIT Convention elaborates a directly applicable regime in private law to fight against the illicit trafficking of cultural objects. Aiming for a simple, concise and uniform set of rules, the 1995 UNIDROIT Convention attempts to strike a balance between the interest of protecting cultural heritage and private property right, somehow reflecting the hybrid nature of such cultural objects, between their heritage and market value. On the one hand, it elaborates far-reaching restitution mechanisms, in case of theft or illegal export, setting higher standards of diligence for the purchaser, and consequently for the art market as a whole. On the other hand, it circumscribes the time frame in which restitution claims can be made, providing legal certainty to long-time owners, and it grants a right to fair and reasonable compensation for the good-faith and diligent possessor. After analyzing the balancing exercise of the Convention, the paper will also attempt to demonstrate that this classical tension between what is common – our cultural heritage – and what is personal – my ownership – can be transcended by the concept of shared responsibility for cultural heritage. Gaining recent attention in cultural heritage law, the notion of shared responsibility among several actors (States, owners, possessors, art market, …) modifies the perception on cultural heritage protection, moving from an exclusive model of two opposite interests (collective interest of cultural heritage vs. individual interest of the owner) towards a more inclusive model. This paradigm shift is noticeable in the recent European Regulation 2019/880 on the import of cultural goods, perceived as a game-changer for fighting illicit trafficking. It might also influence some national policymakers, at first reluctant to adopt rules for the restitution of stolen or illegally exported cultural objects, but who seem to be operating a mentality change. Recent developments in Belgium, however infamous as a hub for illicit art trafficking, may illustrate this shift in mindset