The Law Reform Commission Report on The Unidroit = Convention on Stolen or Illegally Exported Cultural Objects

From: Subject: The Law Reform Commission Report on The Unidroit Convention on Stolen or Illegally Exported Cultural Objects Date: Thu, 1 Dec 2011 10:08:36 -0000 MIME-Version: 1.0 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Content-Location: file://C:\Documents and Settings\ldargan\Local Settings\Temp\Temporary Directory 2 for www.lawreform.zip\www.lawreform.ie\publications\data\lrc95\lrc_95.html X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.6157 The Law Reform Commission Report on The Unidroit = Convention on Stolen or Illegally Exported Cultural Objects

THE LAW REFORM COMMISSION

AN COIMISI=DAN UM ATHCH=D3IRI=DA AN DL=CD

(LRC 55=961997)

REPORT ON

THE UNIDROIT CONVENTION ON STOLEN OR ILLEGALLY = EXPORTED CULTURAL=20 OBJECTS

IRELAND

The Law Reform Commission

Ardilaun Centre, 111 St. Stephen's Green, Dublin = 2

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=A9 Copyright The Law Reform Commission 1997

First Published October 1997

ISSN 1393=963132

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THE LAW REFORM COMMISSION

The Law Reform Commission was established by section 3 of the Law = Reform=20 Commission Act, 1975 on 20th October, 1975. It is an independent = body=20 consisting of a President and four other members appointed by the=20 Government.

The Commissioners at present are:

The Hon. Anthony J. Hederman, former Judge of the Supreme Court,=20 President

Ms Hilary A Delany, B.L., Lecturer in Law, Trinity College, = Dublin

The Right Honourable Dr Turlough O'Donnell, Q.C.

Mr Arthur F Plunkett, Barrister-at-Law

Ms Patricia T Rickard-Clarke, Solictior, Partner =96 Mc Cann = Fitzgerald=20 Solicitors.

John Quirke is Secretary to the Commission.

The Commission's programme of law reform, prepared in consultation = with the=20 Attorney General, was approved by the Government and copies were laid = before=20 both Houses of the Oireachtas on 4th January, 1977. The Commission has=20 formulated and submitted to the Taoiseach or the Attorney General fifty = four=20 Reports containing proposals for the reform of the law. It has also = published=20 eleven Working Papers, eleven Consultation Papers, a number of = specialised=20 Papers for limited circulation and Annual Reports. Details will be found = on pp.=20 182=96187.

Gerard Quinn, B.A., LL.B., LL.M. (Harv), SJD (Harv), Barrister-at-Law = is=20 Research Counsellor to the Commission.

Ms Deirdre Mulligan, LL.B., LL.M. (Edinburgh), Attorney-at-Law (State = of New=20 York), Ms Lia O'Hegarty, B.C.L., LL.M. (Michigan), LL.M. (Harvard),=20 Barrister-at-Law and Ms Roisin Pillay, LL.B., LL.M. (Cantab.), = Barrister-at-Law=20 are Research Assistants.

Further information from:

The Secretary,

The Law Reform Commission,

Ardilaun Centre,

111 St. Stephen's Green,

Dublin 2.

Telephone: 475 1310.

Fax No: 475 1265.

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In the course of preparing this Report, we received advice, = information and=20 assistance from a number of people, to whom we extend our thanks:

Judge John F Buckley (Circuit Court)

Ms Nuala Egan, Lecturer in Law, University College, Galway

Mr Rodney Harris, Project Officer, Legal and Constitutional Affairs = Division,=20 Commonwealth Secretariat, London

Mr Eamonn Kelly, Acting Keeper of Irish Antiquities, National Museum = of=20 Ireland

Mr Conor O'Malley, Cultural Institutions Division, Department of = Arts,=20 Heritage, the Gaeltacht and the Islands

Ms Lyndel Prott, Chief, International Standards Section, Cultural = Heritage=20 Division, UNESCO, Paris

Ms Marina Schneider, UNIDROIT Secretariat, Rome

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TABLE OF CONTENTS

CHAPTER 1:=20 INTRODUCTION

CHAPTER 2: THE = UNIDROIT=20 CONVENTION: A COMPARISION WITH EARLIER INTERNATIONAL AND = REGIONAL=20 INSTRUMENTS

Earlier = International=20 Instruments

The UNESCO = Convention: A=20 Public Law Approach

Regional = Schemes

Council Directive = 93/7/EEC

The Commonwealth=20 Scheme

A Comparison with = the=20 Convention

CHAPTER 3: THE = UNIDROIT=20 CONVENTION: THE TEXT

Introduction

The Convention: = Scope of=20 Application and Definition

=93Claims of = an=20 international character=94

Definition of = =93cultural=20 object=94

A. Restitution of = Stolen=20 Cultural Objects

1. Balancing the = interests of=20 dispossessed owners and bona fide purchasers

2. The Common Law = approach to=20 transfer of title in stolen property: the =93nemo dat=94 = rule and market=20 overt

3. Article 3(2) = and the=20 protection of excavated material

4. Limitation = Periods

(a) Special = regime in=20 respect of tribal and indigenous communities

(b) Should = Ireland enter=20 an Article 3(5) declaration?

5. Compensation = for return of=20 stolen cultural objects

(a) Defence of = due=20 diligence

(b) Who is = liable for the=20 payment of compensation?

(c) Should = Irish law=20 provide for compensation of bona fide purchasers of stolen=20 objects?

6. Alternative = remedies=20 available to the possessor

B. The Return of = Illegally=20 Exported Cultural Objects

1. Article 5: A = conditional=20 right to return

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2. Compensation = for return of=20 illegally exported cultural objects

(a) Should = Irish law=20 provide for compensation?

(b) Burden and = standard of=20 proof

C. General = Provisions

1. Article 8: = Jurisdictional=20 Matters

2. = Non-retroactive nature of=20 the Convention

D. Final = Provisions

1. Entry into = force

2. Relationship = with other=20 international agreements

3. = Declarations

4. Declarations = necessitated=20 by accession

CHAPTER 4: THE = LAW OF=20 LARCENY IN IRELAND AND CHAPTER II OF THE = CONVENTION

Introduction

A. Larceny in = Irish=20 law

1. = =93Ownership=94 under the=20 Larceny Act, 1916

2. Mens rea and = actus reus=20 for larceny

3. Object must be = =93capable of=20 being stolen=94

4. Larceny of = objects from=20 land

B. Unlawful = excavation and=20 unlawful retention

1. The rationale = behind=20 Article 3(2)

2. Article 3(2) = and Irish=20 law

(a) Definition = of=20 archaeological object

(b) Unlawful=20 excavation

(c) Unlawful=20 retention

C. Ownership as = between=20 landowners, finders and the State

1. Ownership at = Common=20 Law

Webb v. = Ireland

2. Implementation = of the Webb=20 decision =96 the National Monuments Act, 1994

3. Impact of the = National=20 Monuments Act, 1994

4. = Conclusion

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CHAPTER 5: = EXPORT=20 RESTRICTIONS ON CULTURAL PROPERTY IN IRISH LAW

The National = Cultural=20 Institutions Act, 1997

Return of objects = illegally=20 exported from Ireland to another EU Member State

Council = Regulation 3911/92=20 and Directive 93/7

Return of objects = illegally=20 exported from Ireland to a non-Member State

The Unidroit = Convention and=20 recognition of foreign public law

CHAPTER 6: THE = PRESENT LAW=20 REGARDING RETURN TO IRELAND

A. Stolen = Objects: Civil=20 Actions by the Dispossessed Owner Against the = Possessor

1. = Introduction

2. = Jurisdiction

3. Applicable = Law

104

4. Substantive = Rules of=20 Law

106

(a) Retrieving = the object=20 from the thief or other party with knowledge of the = theft

106

(b) Retrieving = the object=20 from a bona fide purchaser

107

(i) Common law=20 jurisdictions

108

(ii) Civil law=20 jurisdictions

108

5. Enforcing a = Foreign=20 Judgment

112

(a) = Enforcement in States=20 Parties to the Brussels Convention

112

(b) = Enforcement in=20 non-Brussels Convention States

113

B. Restitution as = a=20 Consequence of Criminal Law Enforcement

114

1. = Extradition

114

2. The Criminal = Justice Act,=20 1994

115

CHAPTER 7: THE = PRESENT LAW=20 REGARDING RETURN FROM IRELAND

Introduction

118

A. Restitution of = Stolen=20 Cultural Objects Through Criminal Law Enforcement

118

1. The Police = (Property) Act,=20 1897 and the Criminal Justice Act, 1951

119

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2. The Convention = on the=20 Confiscation of the Proceeds of Crime

120

3. = Extradition

120

B. Return of = Illegally=20 Exported Cultural Objects

123

Conclusion

124

CHAPTER 8:=20 CONCLUSION

125

CHAPTER 9: = SUMMARY OF=20 RECOMMENDATIONS

128

BIBLIOGRAPHY

130

APPENDIX A: = The Unidroit=20 Convention

132

APPENDIX B: = The UNESCO=20 Convention and list of States Parties thereto

145

APPENDIX C: = Council=20 Directive 93/7/EEC

160

APPENDIX D: = Council=20 Regulation 3911/92

168

APPENDIX E: = Commonwealth=20 Scheme

176

APPENDIX F: = List of those=20 who made submissions on the Consultation Paper

181

LIST OF LAW = REFORM=20 COMMISSION PUBLICATIONS

182

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CHAPTER 1: INTRODUCTION

1.1

The Unidroit Convention on Stolen or Illegally Exported Cultural=20 Objects aims at protecting cultural property by conferring on = dispossessed=20 owners =96 whether States, institutions or private individuals =96 the = right to seek=20 the return of objects stolen from them or illegally exported from their=20 territories.

1.2

The drafters' objective was to strike an acceptable balance between = the=20 interests of those countries from which cultural property is routinely=20 misappropriated and those which import and provide a market for such = material.=20 The Convention therefore reflects the tension between two opposing = interests,=20 that which favours retention of cultural heritage and that which seeks = the=20 continued growth of trade in art.

1.3

The need for an international instrument protecting cultural property = is=20 beyond doubt. The saleability of cultural objects has flourished since = the end=20 of the Second World War; inevitably the demand has encouraged organized = crime in=20 their theft or looting.

1.4

It is estimated that art smuggling is second only to drug dealing as = the most=20 lucrative crime in the world.1 In South = America=20 alone, it is estimated that between 2 and 10 billion dollars worth of = art=20 objects are lost each year through theft and smuggling.2 In = Ireland,=20 conservative figures suggest that more than =A32 million of antiques are = removed=20 from this jurisdiction each year.3 The = objects tend=20 to re-emerge in markets in wealthy developed countries. No price can be = put upon=20 the archaeological losses which are being sustained although there is = general=20 agreement that the number of treasure hunters has increased = substantially in the=20 past twenty years, with the widespread availability and use of cheap = metal=20 detectors.⁴

1.5

The last fifty years has seen a proliferation of international = declarations,=20 resolutions and treaties =96 bilateral, regional and universal in scope = =96 which=20 assert the fundamental importance of the protection of cultural heritage = and=20 pledge the

1	See, for=20 example, Boroughs, L., The Hidden Art of Theft, U.S. = News and=20 World Report, April 2, 1990.

Ibid.

3	This=20 information is based upon the assessment of professionals in = the=20 field. It is understood that at present the Gardai are in = the=20 process of setting up a data-base of stolen=20 objects.

4	See, for=20 example, Kelly, E., Protecting Irelands Archaeological=20 Heritage in Antiquities Trade or Betrayed: legal, = ethical=20 and conservation issues, Tubb, K. (ed.) (An = Archetype=20 publication, 1985), p.235 et=20 = seq.

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support of the Contracting States for various methods of enhancing = that=20 protection. A number of these international instruments are concerned = with the=20 illicit movement across borders of cultural objects.5 The = continued and=20 almost exponential growth in the illicit trade in art in that same = period=20 suggests that they have had only limited success. In the light of this = limited=20 success, however =96 and it is not intended to suggest that = international legal=20 activity can resolve this problem on its own =96 a greater consensus has = emerged=20 regarding the need to take effective international action to remedy = those legal=20 shortcomings which are currently utilised by international =93cultural = criminals=94=20 to their own advantage. The Unidroit Convention6 is the = most recent=20 of these instruments.

The significance of cultural property

1.6

=93Cultural Objects=94 have a significance which may be described but = not fully=20 understood in purely logical terms. Thus, resolution of the problems = which=20 aspects of cultural heritage face today, at a national and international = level=20 alike, cannot be secured by reference to rational considerations alone. = Some=20 prior grasp of the =93public interest=94 in such objects is vital.

1.7

Cultural objects =93tell us who we are and where we come from=94.⁷ The = extent to=20 which they nourish our sense of national identity, in the broadest sense = in=20 which that term can be understood, is reflected in Finlay C.J.'s = judgment in=20 Webb v. Ireland:8

=93It would, I think, now be universally accepted, certainly by = the=20 People of Ireland, and by the people of most modern States, that = one of=20 the most important national assets belonging to the people is = their=20 heritage and knowledge of its true origins and the buildings and = objects=20 which constitute keys to their ancient history. If this be so, = then it=20 would appear to me to follow that a necessary ingredient of = sovereignty in=20 a modern State and certainly in this State, having regard to the = terms of=20 the Constitution, with an emphasis on its historical origins and a = constant concern for the common good is and should be an ownership = by the=20 State of objects which constitute antiquities of importance which = are=20 discovered and which have no known owner=94.9

1.8

This view has subsequently found statutory expression in section 2 of = the=20 National Monuments (Amendment) Act, 1994 which asserts that all=20 archaeological

A = number,=20 however, deal with other protective issues; see for example = the=20 1956 UNESCO Recommendation on the International Principle = Applicable to Archaeological Excavations, the 1966 = UNESCO=20 Declaration of the Principles of Cultural Co-Operation, = the=20 1969 European Convention on the Protection of the = European=20 Cultural Heritage, the 1972 UNESCO Convention for the = Protection of the World Cultural and National Heritage, = the=20 1978 UNESCO Recommendation for the Protection of Movable = Cultural=20 Property and the 1981 European Convention on Offences = against=20 Cultural Property.

6	The text of=20 the Convention is attached hereto as Appendix=20 A.

7	Elsen,=20 Why Do We Care About Art, 27 Hastings L.J. 951 at=20 952.

8	[1988] IR=20 353.

9	Ibid.,=20 = p.383.

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objects found after its implementation are in the ownership of the = State.10

1.9

Cultural objects also have a =93universal=94 dimension, however. An = object which=20 has a =93national=94 value to the descendants of its creator may also be = valued by=20 other peoples who respond to its broader human components, =93and = its=20 invocation of a common human enterprise=9411. This = =93planetary=20 ideology=94 finds expression in a number of international instruments. = The=20 European Cultural Convention 1954, for example, states that:

=93Each Contracting Party shall take appropriate measures to = safeguard=20 and to encourage the development of its national contribution to = the=20 common cultural heritage of Europe ... [and] ... shall regard the = objects=20 of European cultural value ... as integral parts of the common = cultural=20 heritage of Europe, shall take appropriate measures to safeguard = them and=20 shall ensure reasonable access thereto=94.12

1.10

In legal terms, this ideology appears to imply a dual obligation for = States;=20 an obligation to ensure the conservation of its own cultural heritage = and a=20 collective obligation to contribute to the protection of the =93common = cultural=20 heritage of mankind=94. Excessive restriction upon the export of = cultural objects=20 =96 developing States are often accused of this by art-market States =96 = is said to=20 be inimical to this obligation because it ensures that the universal = community=20 will not derive any benefit from such objects.

1.11

Support for freedom of the market in cultural property is based, in = part, on=20 the view that maximum movability promotes a free exchange of cultural = goods=20 across borders. This serves to increase accessibility, thereby = maximising=20 exposure to and appreciation of different cultures. This aim is said to = be=20 frustrated where restrictive export laws are implemented. One might = argue=20 instead that the funding of moving international exhibitions, an = increased=20 willingness on the part of museums and galleries to loan material to = other=20 similar institutions and the availablity of the Internet for exhibiting = material=20 and text would equally promote the interest of cultural exchange, = without the=20 attendant risk of contributing to illicit trade. Indeed, those objects = which are=20 sold through the art market, far from being made more accessible, often = remain=20 in private hands and thus are inaccessible to all but their owners.

1.12

While international movement of cultural objects is perceived as a = good, it=20 is clear that it is not an unqualified good. Many disadvantages attach = to=20 the

In=20 Webb, Finlay CJ in an obiter commentary, = limited the=20 objects to which the State had title to those traditionally = falling=20 within the parameters of the =93treasure trove=94 concept, = i.e., the=20 objects must be made exclusively or substantially of gold or = silver=20 and hidden with the intention of recovery. Griffin and = Henchy JJ.=20 agreed with the Chief Justice's judgment. McCarthy, on the = other=20 hand, did not envisage that the State's ownership should be = confined=20 to objects traditionally defined as =93treasure trove=94. = Walsh J. did=20 not comment on this point. Section 2 of the 1994 Act = ostensibly=20 eliminates any confusion by extending the State's ownership = to all=20 =93archaeological objects=94, as defined in the National = Monuments=20 Act, 1930 as amended; the case and the ensuing = legislation are=20 considered further in Chapter = 4.

11	Elsen,=20 op. cit., at 956.

12	Articles 1=20 and 5. The Convention is reproduced in 11 Accounts and = Papers=20 No. 35 (United Kingdom State Papers,=20 = 1954=9655).

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untrammelled free transfer of cultural objects across national = borders.=20 Arguably, its worst effect is one of =93lost familiarity=94 with = history;

=93The most significant disadvantage of the excessive movement = of the=20 cultural heritage which began with colonialism and increased = booty-taking=20 in war and has culminated in the huge post World War II trade, = licit and=20 illicit, is the isolation of whole communities from their own=20 culture=94.13

1.13

Movement also results in the destruction of context, which for some = objects=20 is an all-important value. Decontextualised =96 taken from the entirety = of which=20 they were a component =96 both the entirety and the individual objects = lose=20 significance; =93the parts together have more beauty and significance = than the sum=20 of the dismembered pieces=94.14 The = cultural=20 object's role of =93bear[ing] witness to epochs and civilizations=94¹⁵ is = hindered by=20 the destruction of the context which limits its educative potential to = the=20 detriment of scholars and the community alike.

1.14

Clearly, the weight of the =93context=94 argument varies according to = the object=20 involved: an absolute adherence to it in respect of all objects would = render=20 them all static, contrary to the interest of international access. Its=20 importance is primarily confined to objects which are movable without=20 significant damage or loss to their =93explanatory powers=94 or = aesthetic value.16 This is = consistent with the absolute ban set out in the National Monuments = Act, 1930,=20 as amended, on the export of =93national monuments=94, which are by = definition=20 rooted in the ground.

1.15

O'Keefe and Prott also make an interesting point about the peculiarly = Western=20 significance of movement:

=93These values [=93of curiosity, exploration and desire for = change=94] in=20 post-Renaissance Europe, fostered the restlessness which resulted = in=20 exploration and ultimately colonization, scientific = experimentation=20 leading to great technical achievements and to a particular thirst = for the=20 rare, the foreign and the exotic which fuelled the museum = movement. These=20 values, which have been of cardinal importance in Western = societies, have=20 not necessarily motivated other culturally rich communities in the = past,=20 and are not necessarily as significant to some of them now. It is=20 important, therefore, within the current debate on movement, to = appreciate=20 that the values related to movement, though universally = significant, are=20 not universally dominant; that where they seriously threaten other = values=20 important to a community, such as tradition and stability, = insensitive=20 promotion of them is a form of

13	O'Keefe, P.=20 and Prott, L., Law and the Cultural Heritage, Volume 3 = =96=20 Movement (Butterworths, 1989), p.11, para.=20 108.

14	Merryman,=20 J.H., Thinking About the Elgin Marbles, (1985) 83 = Michigan=20 Law Review 1881 at 1918.

15	European=20 Cultural Convention, 1954, op. cit.,=20 n.12.

16	For a=20 discussion on the limitations of the =93context=94 argument, = see=20 Merryman, op.cit., p.1911 et=20 = seq.

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ethnocentrism which may prevent appropriate appreciation of the = differently ranked values of the other culture=94.17

1.16

The disadvantages of movement have only become readily apparent in = the wake=20 of the huge increase in the trade =96 both licit and illicit =96 in = works of art=20 since the end of the Second World War:

=93...the existence of an art and antiques market in every = country, the=20 mobility of cultural property and even its exportation are=20 long-established and perfectly natural phenomena which have, over = the past=20 few decades, simply grown out of hand as a result both of the = organization=20 and general extension of the market and of the increasingly = artificial=20 notion of the art work or object d'art, itself linked to = the=20 concept of the museum and the sacredness of culture.=9418

1.17

The illicit trade in cultural objects is clearly thriving. But how = does one=20 determine the exact parameters of =93licit=94 and =93illicit=94 trade? = All are in=20 agreement about the evils of the theft of cultural objects. Differences = emerge,=20 however, when one considers the illegal export of objects. Some states = do not=20 impose any restrictions on the export of an object; in others, the = export of a=20 similar object would be restricted, if not indeed entirely prohibited. = Thus,=20 what is licit in the eyes of one State is a breach of acceptable = standards in=20 another. The opinions of the former group are generally based in the = politically=20 and legally entrenched concepts of private property including the right = to=20 alienate, and the supremacy of the free market. The desire of the latter = group=20 to retain the object in its country of origin runs counter to such = orthodox=20 values.

1.18

Ultimately the different approaches reflect ideological differences = as to the=20 appropriate source of regulation of the international movement of = cultural=20 objects =96 the free market or the State. It is commonly stated that = there are two=20 dominant and conflicting schools of thought on this issue, although = examination=20 suggests most approaches fall somewhere between the two extremes.

1.19

The first school underlines the economic and cultural advantages = which attend=20 a market which is in principle unfettered, thereby permitting everybody = to have=20 access to the cultural heritage of mankind. Apart from the economic = advantages=20 which the free market approach offers, proponents argue that maximum=20 marketability in art is also beneficial and desirable from the cultural = point of=20 view as it =93will indisputably contribute to that dialogue between = national=20 cultures which many see as the principal element directed towards = concord among=20 the peoples of the world=94.19 Others = retort=20 that such arguments are merely ploys to =93ennoble the mercantile aspect = of trade=20 and commerce in

17	O' Keefe=20 and Prott, op. cit., p. 10, para.=20 105.

18	de Varine,=20 H., The Rape and Plunder of Cultures: an Aspect of the=20 Deterioration of the Terms of Cultural Trade between = Nations=20 (1983) 35 Museum 152 at = 156.

19	See, for=20 example, the comments of the Unidroit Secretariat, Draft = Unidroit=20 Convention and Explanatory Report (Dec. 1994) in Acts = and=20 Proceedings of the Diplomatic Conference for the Adoption of = the=20 Draft Unidroit Convention (UNIDROIT 1996), p. 19, para.=20 = 7.,

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cultural property.=9420

1.20

The freedom of movement argument is, of course, propounded in those = States=20 where the art trade is prospering and there is abundant capital in = search of=20 investment while at the same time the amount of cultural property = available=20 internally may be relatively small. On the other side, =93exporting = States=94 which=20 have a rich indigenous culture but may be poor in terms of material = wealth,=20 adopt a more retentive approach, attempting to curtail the operation of = the free=20 market by means of export prohibitions. These strategies range from = blanket bans=20 in some jurisdictions on the export of certain items, such as statues of = the=20 Buddha=96 regardless of their age, form or value =96 or documents = written in=20 a specific language, to restrictive measures using quotas, licences and = export=20 duties.

1.21

It should be noted that not all States can be neatly = compartmentalized into=20 the =93importing=94 and =93exporting=94 categories. Japan is an example = of a key figure=20 in the international art-arena as importer and exporter alike. In = relative=20 terms, Ireland cannot be regarded as a major player in the world of = art,21 = although the=20 trade in foreign cultural objects is evidently expanding.22 = Although the size=20 of the losses sustained may not compare with those in many developing = states, a=20 significant quantity of Irish objects are finding their way onto the=20 international market. Until recently, there were relatively few = operative export=20 restrictions in force in this jurisdiction,23 = although recent=20 legislative action on the part of the European Union has expanded the = export=20 regulatory regime.

1.22

It should also be noted that commentaries on the different approaches = tend,=20 in addition, to make a false dichotomy between the two schools of = thought,=20 treating the views of =93exporting=94 and =93importing=94 States as = polar opposites.=20 Without wishing to deny the serious and sometimes fundamental = differences which=20 exist, rigid adherence to the tenets of either approach would render=20 international co-operation between members of these two schools futile = and,=20 indeed, impossible. As we shall see, the second half of the century has = seen=20 much international co-operative action in the field of cultural = protection.24 The = extent of the=20 problem is commonly recognised and there is at least a moral = consensus=20 about the need for a response.

1.23

It is clear, then, that illicit trade in cultural goods is a thriving = source=20 of criminal activity and one which poses a significant threat to the=20 preservation and development of cultural knowledge. The question is = whether the=20 Convention presents a workable, efficient and accessible basis for = ensuring not=20 only the return of stolen or illegally exported material but also for=20 discouraging illicit trade per se.

20	Rodota, S.,=20 The Civil Law Aspects of the International Protection of = Cultural=20 Property in International Legal Protection of = Cultural=20 Property, p.99 (Council of Europe,=20 1984).

21	See Kelly,=20 E., op. cit., n.4.

22	This view=20 has been expressed by a number of professionals in the=20 field.

23	The Irish=20 export regime is considered in Chapter = 5.

24	See Chapter=20 = 2.

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1.24

This Report examines whether Ireland should accede to the Unidroit = Convention on the International Return of Stolen or Illegally Cultural=20 Objects. We will first look at previous international and regional=20 instruments and illustrate the differences between the various regimes. = This=20 review points up the need, notwithstanding the existence of these = regimes, for=20 an instrument which is international in character and attracts = widespread=20 support, particularly from =93importing=94 States.

1.25

We will then consider the Convention text Article by Article, = pointing out=20 the areas which necessitate changes in Irish law and presenting = recommendations.=20 The particular issues raised by our law of larceny are considered in = Chapter 4,=20 where we focus on the adequacy of that law and on the question of = whether it=20 forms a satisfactory basis on which to pursue a claim under the = Convention. The=20 Webb decision and the National Monuments legislation are = also=20 considered, particularly in the context of ownership of material = recovered from=20 land. In Chapter 5 we look at the Irish export regime and at the extent = of=20 protection afforded by it in the context of Chapter III of the = Convention. The=20 procedures available for the pursuit of a claim for return of objects to = and=20 from Ireland are considered in Chapters 6 and 7 respectively. Our = conclusions on=20 the Convention are set out in Chapter 8. A summary of our = recommendations is=20 provided in Chapter 9.

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CHAPTER 2: THE UNIDROIT CONVENTION: A COMPARISON WITH EARLIER = INTERNATIONAL=20 AND REGIONAL INSTRUMENTS

2.1

That there has been progress towards greater co-operation between = States and=20 a move away from the supremacy of the market in national law is clear = from the=20 development, since the 1940s, of various international and regional = instruments=20 dealing with heritage protection. In anticipating the potential for = success of=20 the Convention, it is significant that progress is being made, = particularly at=20 regional level, towards instituting schemes which recognise and promote = mutual=20 respect for heritage and the idea of a collective right to culture. Such = recognition necessitates the overriding of individual property rights = and the=20 demands of the market to achieve a particular goal, one which has not,=20 heretofore, gained universal support.

Earlier international instruments

2.2

The protection of cultural heritage began to assume real importance = in the=20 international community only towards the end of the Second World War. = The=20 Declaration of London, 1943, concluded by the Allied Powers, = expressly=20 provided for the return of objects removed from occupied territories, = regardless=20 of whether the objects had been acquired as a result of

=93transfers or dealings which had taken the form of open = looting or=20 plunder, or of transactions apparently legal in form, even when = they=20 purport to be voluntarily = effected=94

2.3

The Declaration imposed an absolute obligation upon the possessor to = return=20 objects which had been removed from occupied territories, regardless of = whether=20 he or she acquired the object in good faith.1 = Adherence to this=20 Declaration meant that some States had to overturn the protection which=20 their

The=20 Declaration provided that it was a =93a formal warning to = all=20 concerned, and in particular to persons in neutral = countries, that=20 [the Allied Powers] intend to do their utmost to defeat the = methods=20 of dispossession practised by the Governments with which = they are at=20 war against the countries and peoples who have been so = wantonly=20 assaulted and despoiled=94. Following the War, France, the = United=20 Kingdom, the United States and the USSR each implemented = laws=20 governing restitution in their respective zones of = occupation, which=20 overrode national provisions protecting transferees: = O'Keefe, P and=20 Prott, L Law and the Cultural Heritage, Volume III: = Movement=20 (Butterworths, 1989) para 1505 et=20 = seq.

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national laws afforded good faith purchasers and possessors. This = approach=20 was also adopted in another instrument of similar scope, the Protocol = to the=20 Hague Convention for the Protection of Cultural Property in the Event of = Armed=20 Conflict, 1954. 74 States have accepted this Protocol. Ireland, = however, has=20 not done so.

2.4

The particular post-war conditions with which these two instruments = were=20 concerned made the solutions advocated therein acceptable to much of the = international community. This consensus disappeared, however, when = normal=20 civilian life resumed and the question of the competing interests of the = dispossessed owner and the good faith possessor acquired prominence in=20 international deliberations.

The UNESCO Convention: A Public Law Approach

2.5

The UNESCO Convention on the Means of Prohibiting and Preventing = the=20 Illicit Import, Export and Transfer of Ownership of Cultural Property,=20 1970² was=20 the first international instrument to recognise a general obligation on = States=20 to take steps to prevent illicit movement in cultural property. The = obligation=20 to return cultural property is imposed, however, only in respect of = limited=20 categories of object: those which constitute inventoried material = belonging to a=20 =93museum or a religious or secular public monument or similar = institution=94.3 The = Unidroit=20 Convention, by contrast, imposes an obligation to return in respect of = all=20 cultural objects =93of importance for archaeology, prehistory, history,=20 literature, art or science=94 which belong to one of the categories in = its Annex.=20 The Annex to the Unidroit Convention corresponds exactly with Article 1 = of the=20 UNESCO Convention. Such exact correlation is designed to enable the two=20 Conventions to work hand in hand to the best possible effect. The scope = of the=20 UNESCO Convention is limited, however, by the fact that objects = constitute=20 cultural property only if, in addition to belonging to one of the = categories=20 laid down in Article 1, they have been =93specifically designated=94 by = each State=20 as being of importance for archaeology, prehistory, history, art, = science or=20 literature. The Unidroit Convention, on the other hand, provides an = independent=20 definition of cultural object which does not rely in any way on = government=20 designation. Its operation does depend on government action in respect = of=20 illegally exported, as distinct from stolen cultural objects, in that = such=20 objects are =93illegally exported=94 only if export restrictions have = been imposed=20 on them under the domestic law of a Contracting State.

2.6

Ireland in common with a number of other EU member states has not = become a=20 party to the UNESCO Convention. It is essentially a public law treaty = which=20 requires the Contracting States themselves to take various protective = measures,=20 such as setting up an inventory of important public or private cultural=20 property,⁴=20 promoting the establishment and development of institutions to = ensure

2	The text of=20 the Convention and a list of the States Parties thereto are = attached=20 hereto as Appendix B.

3	Article=20 7(b)(i) and (ii).

4	Article=20 = 5(6).

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the protection of cultural property,5 = establishing=20 ethical guidelines for collectors and curators6 and = taking=20 educational measures to stimulate and develop respect for the cultural = heritage=20 of all States.⁷=20 The Convention does, however, contain one vital private law provision; = Article=20 7(b)(ii) provides for the restitution of illegally exported cultural = objects,=20 even when they are in the hands of persons who acquired then in good = faith.8 The good = faith=20 possessor may, nonetheless, obtain compensation.9 Reichelt = refers to=20 the =93commonly accepted opinion [that Article 7(b)(ii) is] the = principal obstacle=20 to a more general acceptance of the UNESCO Convention.=9410 Civil = law states=20 did not wish to abandon the fundamental concept of the protection of the = good=20 faith possessor which, in their opinion, was central to the free = circulation of=20 goods and consequently ensured the vitality of the market. A number of = States,=20 many of which were =93Market States=94, also believed that the scope of = application=20 of the Convention was not sufficiently clear and felt, therefore, that a = wide=20 interpretation of its scope could significantly hinder the conduct of = the=20 legal trade in cultural property.

2.7

Despite its flaws, the UNESCO Convention represented a significant = step=20 forward in laying the foundations of an effective international law of = cultural=20 property and in enunciating certain principles and values =93which = regrettably=20 continue to be honoured more in the breach than in the = observance=94.11 It may, = perhaps,=20 have been before its time; the 25 years between the adoption of the = UNESCO and=20 the Unidroit Conventions have brought about a change in attitude on the = part of=20 many States. Prott refers to a

=93tidal wave of theft of cultural objects [which] swept over = wealthy as=20 well as poorer countries. The losses from museums, private = collections,=20 country houses and churches, even in countries which had = traditionally=20 seen themselves as =93art market=94 States had become so serious = that they=20 were prepared to consider more drastic action in respect of stolen = cultural objects, in fact to accept that all such stolen cultural = objects=20 should be returned. This change was also partly due to a change of = attitude in these countries engendered by the 1970 UNESCO = Convention and=20 UNESCO's work to sensitize the populations of those countries to = the=20 enormous damage to humanity's heritage by removal of cultural = objects from=20 their context.=9412

5	Article=20 5(c).

6	Article=20 5(e).

7	Article=20 5(f).

8	Subject to=20 the precondition that the object is a =93designated=94 one = and is=20 exported from the territory of one State Party to the = Convention to=20 that of another after the entry into force of the Convention = in the=20 two States concerned.

9	The=20 reluctance on the part of many States to endorse this = principle was=20 augmented by the fact that Article 7(b)(ii) did not set out = any=20 limitation period within which restitution must be=20 pursued.

10	See=20 Reichelt, G., International Protection of Cultural = Property,=20 Uniform Law Review (1985) 43 at = 55.

11	Schneider,=20 M., The Final Text =96 The Unidroit Convention on Stolen = or=20 Illegally Exported Cultural Objects, p.1. This paper was = presented at the Art Theft Conference, London, 15th = November=20 1995.

Prott, L.,=20 UNESCO and UNIDROIT: A partnership against trafficking in = cultural objects (Paper presented at the Art Theft = Conference,=20 London, 15th November 1995). The author added that = =93another factor=20 behind the change in attitude was the efforts of UNESCO, of = ICOM=20 (International Council of Museums) and of informed = professionals=20 such as archaeologists and anthropologists, to illustrate = the ways=20 in which stolen cultural objects were filtering into the = licit=20 trade, thus implicating well-meaning collectors and museums = in the=20 = damage=94.

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2.8

Thus, there emerged on the part of a number of scholars, interested=20 professionals and States alike, an admission that the protection of = cultural=20 objects necessitated the abandonment of the protection which civil law=20 jurisdictions had traditionally afforded to the good faith purchaser and = possessor. The notion of automatic restitution to the dispossessed = owner,=20 regardless of the fides of the possessor, gained momentum.

2.9

A supplementary instrument was required which would provide clear and = specific obligations in respect of both stolen and illegally exported = cultural=20 objects; this instrument would respond to the concerns of States which = felt that=20 the 1970 Convention was not adequately precise.13 This = instrument=20 would focus on private law aspects of the illicit trade in cultural = objects =96=20 primarily, the resolution of the competing claims of the dispossessed = owner and=20 the bona fide purchaser. As private law matters remained, for the = most=20 part, outside of the remit of UNESCO itself, it approached UNIDROIT in = this=20 regard. Previously, Unidroit had prepared the Draft Uniform Law on = the=20 Acquisition in Good Faith of Corporeal Movables, 1974, which touched = upon=20 many issues of interest to the resolution of the owner versus bona = fide=20 possessor debate. Unidroit then prepared a first study on the = international=20 protection of cultural property in the light especially of its 1974 = draft and of=20 the 1970 Convention. A second study followed which dealt specifically = with the=20 rules of private law governing the transfer of title to cultural = property.14 The = draft=20 Convention which emerged sought to introduce a regime of common minimal = rules=20 which would ensure that the differences between legal systems could no = longer be=20 exploited to the benefit of the illicit trade.

2.10

Before considering the Unidroit Convention in detail, we will look at = a=20 number of other international instruments of similar scope and purpose = to that=20 of the Convention.

Regional Schemes: Council Directive 93/7/EEC

2.11

Council Directive 93/7/EEC on the return of cultural objects = unlawfully=20 removed from the territory of a Member State15 was = adopted on 15=20 March 1993, and is aimed at providing, as between the EU Member States, = a simple=20 and efficient regime for the return of cultural objects as defined in = the=20 Directive. These include =93national treasures=94 possessing artistic, = historical or=20 archaeological value under national legislation which also fall into one = of the=20 categories specified

Indeed,=20 UNESCO itself has commented that the very flexiblity of the=20 Convention has proved detrimental in that it allows of = diverse=20 interpretations and a resulting reluctance to adhere to it: = Unesco=20 Comments on the Draft Convention in Acts and Proceedings = of the=20 Diplomatic Conference for the Adoption of the Draft Unidroit = Convention on the International Return of Stolen or = Illegally=20 Exported Cultural Objects, June 7=9624, 1995,=20 p.85.

14	These two=20 studies were entrusted to Ms G. Reichelt of the Vienna = Institute of=20 Comparative Law.

OJ No L=20 74/74, 27.3.93. The European Communities (Return of = Cultural=20 Objects) Regulations, 1994 (SI No 182/94) (hereinafter = referred=20 to as the =931994 implementing Regulations=94) give effect = to the=20 Directive in Ireland. The text of the Directive is attached = hereto=20 as Appendix = C.

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in the Annex to the Directive.16 Various = financial=20 thresholds apply, but only to some of the categories: archaeological = objects,=20 for example, are covered regardless of value.17

2.12

Unlawful removal is defined as removal in breach of a Member State's = own=20 rules on the protection of national treasures or in breach of Regulation = 3911/92,¹⁸ or=20 not returned at the end of a period of lawful removal. Council = Regulation=20 3911/92 on the export of cultural goods requires cultural goods = destined for=20 export beyond the EU to be accompanied by a licence issued by the Member = State=20 in which the object is located. Such licence may be refused where the = object is=20 covered by the legislation of a Member State pertaining to protection of = national treasures of that State.

2.13

The Directive and Regulation do not provide any means of retrieving = objects=20 which are exported beyond the territory of the EU. The Regulation merely = seeks=20 to monitor such export while allowing individual Member States a margin = of=20 discretion within which they may retain certain objects of particular=20 significance to them. Its usefulness in terms of return is limited to = objects=20 which, having been transported beyond the EU without a licence, return = to the=20 EU: such objects may then be characterised as having been removed in = breach of=20 the Regulation. If they remain outside the EU, the provisions of the = Directive=20 cannot be invoked to secure their return, that instrument being = enforceable only=20 as between EU Member States.19

2.14

The potential success of the EU arrangements remains to be seen. = Several=20 Member States were late in implementing the Directive, some not doing so = until=20 mid-1995, so that sufficient time has not elapsed to properly evaluate = its=20 efficacy or indeed to suggest changes to the existing scheme. According = to the=20 European Commission, no claims have as yet been resolved by means of = litigation,=20 whereas several claims have been settled through collaboration between = Member=20 States, as provided in Article 4. Given the potentially high cost of = pursuing a=20 claim before a foreign court, it is likely that a State would consider = doing so=20 only if the object were of outstanding importance to the Member State; = the irony=20 here is that such objects are also likely to be the most closely = monitored and=20 therefore the least likely to be capable of illegal export. In practical = terms,

The=20 categories of object laid down in the Annex are more limited = in some=20 respects than those in the Unidroit Convention, for example = the=20 Directive covers archaeological objects more than 100 years = old=20 which derive from archaeological sites, excavations or = collections,=20 while the Unidroit Convention covers such objects regardless = of age;=20 the Directive imposes an age limit also in respect of = =93elements=20 forming an integral part of artistic, historical or = religious=20 monuments which have been dismembered=94 while the = Convention does=20 not. Contrary to this pattern, the Directive, unlike the = Convention,=20 contains a catch-all category under which any antique item = more than=20 50 years old and valued at more than 50,000 ecus may be = dealt with=20 under the Directive.

17	Financial=20 value is that of the object in the State from which return = is=20 requested.

The=20 Regulation definition of cultural object differs from that = in the=20 Directive in that it does not contain the proviso that = objects=20 contained in the Annex (which is largely similar to that in = the=20 Directive) must also constitute national treasures. (Member = States=20 do have the power, however, to refuse licences where the = object is a=20 national treasure under domestic law). In effect, therefore, = all=20 cultural objects must have a license before they may be = exported=20 beyond the territory of the EU under the Regulation; only = those=20 cultural objects which satisfy certain additional criteria = under the=20 Directive must be returned to a requesting State. The text = of=20 Regulation 3911/92 is attached hereto as Appendix=20 D.

19	The=20 Directive and Regulation are discussed further in Chapter=20 = 5.

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therefore, the most significant aspect of the EU scheme is the = obligation=20 imposed on Member States to co-operate and undertake consultation to = secure=20 return.

2.15

The existence of a European system for return represents a = significant=20 development. It does not, however, avail us in securing return from = non-EU=20 States to which much of our cultural heritage is exported, thus = illustrating the=20 need for a system which is international in nature and which attracts = maximum=20 support in the form of accessions.

Regional Schemes: The Commonwealth

2.16

The Scheme for the Protection of Cultural Heritage within the=20 Commonwealth, adopted by the Meeting of Commonwealth Law Ministers = in=20 Mauritius in 1993 governs the =93return by one Commonwealth country of = an item of=20 cultural heritage found within its jurisdiction following export from = another=20 Commonwealth country contrary to its laws=94.20 It is = intended to=20 be complementary to other arrangements such as the UNESCO Convention = 1970, the=20 Unidroit Convention and the European Communities Directive 7/93 and = Regulation=20 3911/92, Article 1(3) of the Scheme stating that it does not preclude=20 participation in any of these instruments. While the Scheme is not = directly=20 relevant to Ireland, the apparant enthusiasm for it within the = Commonwealth21 would = suggest a=20 concomitant willingness on the part of those States to become parties to = other=20 international agreements such as the Unidroit Convention.

2.17

The Scheme differs in certain respects from the Directive and the = Unidroit=20 Convention, for example the range of objects covered is more = limited.22 Each of = the=20 instruments recognises the legitimacy of imposing restrictions on export = of=20 particular objects of cultural importance although they differ in the = manner in=20 which such restriction is to be realised. The Scheme also differs from = the other=20 instruments in that in addition to directing Member States to make it an = offence=20 to unlawfully export cultural property, it provides that States may make = it an=20 offence to unlawfully import such material. This provision was = included,=20 albeit on a non-mandatory basis, in order to overcome the argument that = laws=20 prohibiting export are public laws and the courts of one country will = not=20 enforce the public laws of another country.

2.18

A similar provision was not included in the Unidroit Convention, = presumably=20 due to an =93evolution in legal thinking=94 which shows an increasing = willingness to=20 take into account the mandatory rules of law of another State.

20	Article=20 1(1). The text of the Scheme is attached hereto as Appendix=20 E.

21	There are=20 currently 53 States in the Commonwealth, the unanimous = support of=20 which was required for adoption of the=20 Scheme.

O'Keefe=20 points out, however, that this distinction may be = insignificant in=20 practice given that States will be unlikely to go to the = trouble and=20 expense of pursuing objects of lesser significance. = Furthermore, the=20 more significant the object, the greater its monetary value = is=20 likely to be, so that the financial thresholds in the = Directive will=20 not present an obstacle: O'Keefe, P, Unlawful Export of = Cultural=20 Heritage: the Commonwealth Scheme, the Unidroit Draft and = the EEC=20 Directive and Regulation: A Comparison, Meeting of = Commonwealth=20 Law Ministers, Mauritius 15=9619 November 1993, Memorandum = Part I pp.=20 199=96204 (Commonwealth Secretariat,=20 1995).

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Article 7 of the 1980 Convention on the Law Applicable to = Contractual=20 Obligations (the Rome Convention) and Article 19 of the Swiss Law = on=20 Private International Law, the case law of many countries and the EC = Directive and Regulation demonstrate a move away from the notion that=20 recognition of foreign public law represents an intrusion on the = sovereignty of=20 a state.²³ It=20 was recognised by the committee of experts, however,24 that=20 notwithstanding this evolution, the requirement to so recognise would = have to be=20 narrowly drawn in order to gain wide acceptance. To this end Article 5 = gives=20 supremacy to the cultural significance of the object; while a claim for = return=20 may be brought on the basis of illegal export, the authority in the = requested=20 State is obliged to order its return only where it is satisfied that its = removal=20 from the requesting State =93significantly impairs=94 one or more = interests such as=20 the =93physical preservation of the object or its context=94 or the = object is of=20 =93significant cultural importance=94 for the requesting State. These = provisions=20 represent a compromise between those States which favour automatic = return of=20 objects exported in breach of national law, and those which favour = minimum=20 restriction on the movement of cultural objects. The latter were already = concerned that the breadth of the definition of cultural object in = Article 2=20 posed a serious threat to that objective. Both the Directive and the = Scheme=20 treat unlawful export, once established, as conferring an automatic = right to=20 return, while the Convention does so only in respect of stolen = objects.

Regional Schemes: A Comparison with the = Convention

2.19

The common aim of the Convention, the Scheme and the Directive is to = provide=20 a cost-effective and accessible means of securing return of cultural = property=20 across national boundaries. Under the Convention, the Contracting States = are=20 obliged at the time of ratification to specify the authority to which a = claim=20 for restitution or return is to be directed, be it the courts, an = authority=20 specially established for the purpose, or through diplomatic channels. = Under the=20 Directive and the Scheme, each country must nominate a central authority = which=20 will make and receive requests for the return of property covered by = them.25 A = request must=20 give information sufficient to identify the object and where possible = its=20 location. Both the Scheme and the Directive differ from the Convention = in that=20 they impose specific obligations on the country of location in relation = to the=20 object, once identified; for example, on receiving a request a State = must=20 take

23	Unidroit=20 Secretariat Explanatory Report in Acts and Proceedings of = the=20 Diplomatic Conference, op. cit., p.33, para.=20 74.

A = group of=20 governmental experts was convened by the Governing Council = of=20 UNIDROIT at its 69th session in April 1990, to discuss and = revise=20 the text of the preliminary draft Convention. The = preliminary text=20 had been prepared by a study group set up by the UNIDROIT = Governing=20 Council in 1988. The text was considered at four meetings, = chaired=20 by Mr Pierre Lalive, between 1991 and 1993. These meetings = were=20 attended by representatives of fifty of the fifty-six member = States=20 of UNIDROIT, twenty-five non-Member States, eight = inter-governmental=20 organisations, and of a number of non-governmental = organisations and=20 professional associations. See Unidroit Explanatory Report = in=20 Acts and Proceedings of the Diplomatic Conference, op. = cit.,=20 p. 18, para. 4.

The Court=20 designated in the 1994 implementing Regulations is the High = Court;=20 the Minister for Arts Culture and the Gaeltacht is nominated = the=20 central authority to carry out the functions provided for in = the=20 Directive. The Minister may apply to the Court for an order = inter=20 alia to enable the requesting State to determine that = the object=20 is in fact a cultural object and for the preservation of the = object:=20 SI 182/94, op. cit., Regulation=20 5.

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steps to protect the object.26 By = contrast, the=20 Convention provides that protective measures available under the law of = the=20 State of location of the object may be invoked, even where the = claim for=20 restitution or return is proceeding in another jurisdiction.27 Under = the Scheme,=20 the authority may then either notify the holder that if proceedings are = not=20 initiated within a specified period, the object will be returned on foot = of the=20 request by the requesting state, or institute proceedings or advise the=20 requesting state to do so with a view to securing return of the = object.

2.20

The Directive, unlike the Convention, contains specific direction as = to the=20 procedure to be followed in seeking return: the requesting State may = initiate=20 proceedings in the requested State against the possessor, or failing = that, the=20 holder of the object in order to secure its return. Such proceedings may = only be=20 brought where they are accompanied by documentation describing the = object in=20 question and establishing that it is a cultural object, and a = declaration that=20 the object has been removed unlawfully from the requesting State.28 The = court is=20 obliged to order return where both of these elements are = established.29 The = Convention,=20 however, provides a range of possible forums; a claim for restitution or = return=20 may be brought in the Contracting State of location or in courts or = other=20 competent authorities having jurisdiction under the law in Contracting=20 States.³⁰ Both=20 instruments make provision for submission to arbitration with the = consent of the=20 parties.

2.21

Under both the Convention and the Directive, time begins to run = against the=20 claimant from the time that it knew the identity of the possessor = and the=20 location of the object, while the Scheme requires knowledge only of the = location=20 of the object. The time limits are three, one and five years = respectively, the=20 longer time afforded by the Scheme being offset by the fact that time = may be=20 triggered against a claimant more easily than under either the = Convention or the=20 Directive. An upper time limit is imposed under the Directive and the = Convention=20 of 30 and 50 years respectively from the date of the theft or the = illegal=20 export³¹ while=20 no upper limit is provided in the Scheme.

2.22

Notwithstanding the long limitation periods, claimants would be well = advised=20 to pursue an investigation into the location of the object and the = possessor's=20 identity as expeditiously as possible, even where the objects are of a = type=20 which are not subject to an upper time limit, since the task of proving = the=20 facts of the initial acquisition is likely to become increasingly = onerous with=20 time, particularly where the object has been passed on to successive = purchasers.=20 The

26	Directive=20 93/7, Article 4(4); Commonwealth Scheme, Article=20 8.

27	Convention,=20 Article 8(3).

28	Directive=20 93/7, Article 5.

29	Directive=20 93/7, Article 8.

30	Convention,=20 Article 8(1).

The=20 Convention further provides that objects which form an = =93integral=20 part of an identified monument or archaeological site or = [belong] to=20 a public collection=94 are not subject to this upper time = limit; a=20 State may, however, declare its own upper limit, either 75 = years or=20 such longer period as is provided in its law: Article 3(3), = 3(4) and=20 3(5). The Directive contains a similar provision in respect = of=20 =93ecclesiastical goods=94 and objects =93forming part of = public=20 = collections=94.

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identity of those who may pursue a claim under the various = instruments also=20 differs, the Convention being unique in not limiting pursuit of a claim = to=20 States.³²

2.23

The Unidroit Convention, the Commonwealth Scheme and the Directive = each=20 contain provisions relating to compensation of a bona fide = purchaser. The=20 Convention requires payment of =93fair and reasonable compensation=94 to = the=20 possessor of a cultural object which was illegally exported, provided = that he or=20 she neither knew nor reasonably should have known at the time of = acquisition=20 that it had been illegally exported. Where the object was stolen, the = possessor=20 is also required to prove that he or she exercised due diligence when = acquiring=20 the object. The Scheme provides that compensation is payable where the = holder is=20 an innocent purchaser for value who exercised due care and attention in=20 acquiring the object; where the holder has failed to utilise any = validation=20 system³³=20 provided under the Scheme, he may be presumed, unless the contrary is = proved,=20 not to be an innocent purchaser.

2.24

The Directive provides that the possessor who has exercised due care = and=20 attention in acquiring the object is entitled to such compensation as is = deemed=20 fair in the circumstances. The burden of proof is governed by the = legislation of=20 the requested Member State34 which = is=20 significant because, as O'Keefe points out, the possessor is in a more=20 favourable position if the requesting State has to prove that he was not = a good=20 faith purchaser than if he has to prove that he was.35 Under = the=20 Directive as implemented in Ireland, the High Court is not obliged to = order the=20 payment of compensation by the requesting State =93unless it is = satisfied that the=20 possessor exercised due care and attention in acquiring the cultural = object=94 in=20 question.³⁶ As=20 the 1994 implementing Regulations are silent on the question of the onus = of=20 proof, the law remains unchanged in this regard. It is for the possessor = to=20 establish, on the balance of probabilities, an entitlement to = compensation.

2.25

In respect of stolen cultural objects, the Convention places the = burden of=20 proof on the possessor to prove that he or she exercised due diligence = when=20 acquiring the object. In the case of illegally exported objects, = however, it is=20 silent as to where the burden lies so that the position depends on the = law of=20 the Contracting State hearing the claim.37

2.26

While the Directive and the Scheme make the provision of compensation = mandatory where good faith is established, the Convention, by way of = Article 9,=20 allows States to rely on domestic law where to do so is more favourable = to=20 restitution or return. States may, therefore, under the Convention,=20 unilaterally

32	This is=20 true only of stolen objects; claims arising out of illegal = export=20 may be pursued only by Contracting = States.

Article 4=20 provides that parties to the Scheme may introduce a = validation=20 system whereby a person intending to purchase an item of = cultural=20 heritage may request the country of export to issue a = validation=20 certificate stating that the item is not an unlawful export = from=20 that country.

34	Directive=20 93/7, Article 9.

35	O'Keefe,=20 op. cit., n.22 at 203.

36	Regulation=20 8, 1994 implementing = Regulations.

37	The burden=20 and standard of proof are considered infra at para. = 3.118=20 et = seq.

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decide against providing for compensation of good faith = possessors.38

2.27

All three instruments differ from the UNESCO Convention in one = significant=20 respect: they each impose obligations on Contracting States in explicit = terms.=20 That the UNESCO Convention takes a non-mandatory approach to the = protection of=20 cultural property reflects the era in which it was drafted. There is = evidence=20 that a more pro-active approach is now being taken in respect of that=20 Convention, with many Member States having recently introduced = legislation to=20 regulate the export, import and trade in cultural property. In both = Canada and=20 the United States, which became parties to the Convention in 1978 and = 1983=20 respectively, prosecutions have been secured and cultural property = returned39 under = legislation=20 implementing the Convention.40 Such = successes=20 suggest that the UNESCO Convention may become more rather than less = relevant in=20 the future, as the normative effect of other instruments, both = international and=20 regional, makes the international community more receptive to wider = ranging=20 control of illicit trade.

38	For a=20 discussion of Articles 4 and 9, see para. 3.68 et=20 seq.

39	Reports of=20 Member States on measures they have adopted to implement the = Convention on the Means of Prohibiting and Preventing the = Illicit=20 Import, Export and Transfer of Ownership of Cultural Propery = (1970), presented to the Unesco General Conference, 28th = Session, Paris 1995.

In Canada,=20 the Cultural Property Export and Import Act 1977; in = the=20 United States, the Convention on Cultural Property = Implementation=20 Act 1983 19 U.S.C. =A7=A72601=962613 (1988 and Supp. = 1994). The Act=20 implements Articles 7 and 9. Because it is non-retroactive, = it=20 covers only those objects stolen after April 12, 1983, the = effective=20 date of the = Act.

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CHAPTER 3: THE UNIDROIT CONVENTION: THE TEXT

Introduction

3.1

The proliferation of illicit trade in art since the Second World War = is=20 largely attributable to the increasing demand for art objects and = consequently=20 their rise in market value, advances in technological sophistication = which=20 facilitate international communication and transfer of funds and the = ease in=20 crossing international borders. These advances compound existing = difficulties in=20 detecting illicit activity; in general, police and customs officials are = neither=20 adequately trained nor resourced to curb the outflow of art works from = their=20 jurisdictions. Ideological differences at supra-national level have = resulted in=20 the international community failing repeatedly in the past to compromise = on the=20 issue of reconciling conflicting legal rules.

3.2

That the Convention will not by itself produce a solution to the = problem of=20 illicit trade but rather constitutes the beginning of a process by which = it is=20 hoped to promote international cultural co-operation is acknowledged in = its=20 Preamble. It also states that implementation should be accompanied by = other=20 effective measures for protecting cultural objects, such as the = development and=20 use of registers, the physical protection of archaeological sites and = technical=20 co-operation. That it is no panacea for all of the ills caused by the = illegal=20 movement of cultural objects may be a self-evident point, but it is = nonetheless=20 a point which must be borne in mind when analysing the Convention and=20 considering the merits of becoming a party thereto:

=93The instrument should not seek to do too much: after 30 = centuries of=20 relocation of cultural objects in peace and war, one instrument = cannot=20 turn the tide of history. What this instrument can do is take one = or two=20 clear steps to reversing the current tide of theft, illegal = excavation and=20 illegal export of cultural objects which will result in their = return by=20 practical legal steps.=941

3.3

In the words of the Preamble, the Convention seeks to introduce a = regime of=20 =93common minimal legal rules=94 in as many States as possible in order = to ensure=20 that differences between various legal systems cannot be exploited = to

1	UNESCO,=20 Comments on the Draft Unidroit Convention (April 1995), in = Acts=20 and Proceedings of the Diplomatic Conference, op. cit.,=20 = p.88.

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the benefit of the illicit trade. Arriving at the content of these = minimum=20 rules was not an easy task. The drafters, in so doing, sought to

=93draw upon the progress that had been permitted by the = evolution of=20 ideas ... and to show how the national character of the protection = of=20 cultural heritage may be adapted to, or be accompanied by, the = growth of=20 solidarity between States=94.2

3.4

It would, however, be unduly optimistic to assert that ideas have = evolved to=20 such an extent that there was a clear uniformity of approach among the = different=20 negotiating States. Many States attached significance to the free = international=20 circulation of cultural objects and sought, thus, to limit the scope of = the=20 application of the Convention to the greatest extent possible. On the = other=20 hand, certain States =96 as a rule, the exporting States =96 sought to = extend as far=20 as possible the application of the principles of restitution and return = and to=20 preserve the priority enjoyed by the dispossessed owner. It is not = surprising,=20 therefore, in the light of such diverging viewpoints that it took six = years to=20 reach a final agreement.

The Convention: Scope of Application and Definition

3.5

The philosophy, aims, role, limitations and content of the Convention = are=20 summarised in its Preamble which provides an insight into the various = competing=20 interests with which the framers of the Convention had to contend. The = Preamble=20 speaks of the dual needs of protecting cultural heritage and of = facilitating=20 licit trade therein. It endorses the concept of the =93common cultural = heritage of=20 mankind=94, yet also notes the importance of retaining objects in their = proper=20 context in order that national and international communities alike may = benefit.=20 It seeks to impose minimum protective rules yet enables Contracting = States to=20 avail of their own more protective rules. Finally, it acknowledges that, = if the=20 ongoing impoverishment of cultural heritage worldwide is to be stemmed, = a=20 multifaceted approach must be adopted.

3.6

Although the Convention aims to establish a framework of =93common, = minimal=20 legal rules=94 in the Contracting States upon which domestic legislation = must=20 build, it nonetheless grants the States authority to alter that = framework and=20 deviate from the norms expressed therein in limited circumstances. As = will be=20 seen, declarations relating to the applicability of aspects of the = Convention=20 may be made under Articles 3, 13 and 16.

Article 1 of the Convention provides that it shall apply to:

=93claims of an international character for:

(a)	the restitution of stolen cultural=20 = objects

2	Schneider,=20 M., The Final Text =96 The Unidroit Convention on Stolen = or=20 Illegally Exported Cultural Objects,=20 p.3.

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PAGE = NUMBER=3D19=20

(b)	the return of cultural objects removed from the = territory=20 of a Contracting State contrary to its law regulating = the=20 export of cultural objects for the purpose of = protecting its=20 cultural heritage (hereinafter =93illegally exported = cultural=20 = objects=94).=93

=93Claims of an international character=94

3.7

Thus, the Convention has no application to claims arising from purely = domestic transactions. But once the cultural object at the heart of a = claim=20 crosses national frontiers, questions as to the applicability of the = Convention=20 arise. It is clearly applicable when an object is taken from Contracting = State A=20 =96 following a theft or as a result of illegal export =96 and brought = to=20 Contracting State B. If, however, the same object is subsequently = re-introduced=20 into Contracting State A, would an ensuing claim for restitution or = return be of=20 an =93international character=93? Some have suggested that such a claim = would be=20 beyond the scope of the Convention.

3.8

The facts of Winkworth v. Christie, Manson & Woods = Ltd.3 fall = within this=20 hypothetical model. In that case, cultural objects were stolen from an = English=20 collector and brought to Italy. They were then sold to an Italian = purchaser who,=20 two years later, presented them for sale at Christie's in London. In an = action=20 in conversion and detinue before an English court, the question arose as = to=20 whether English or Italian law applied to the issue of title to the = goods as=20 between the dispossessed owner (the plaintiff) and the bona fide=20 purchaser.

3.9

The defendant argued that Italian law applied because under private=20 international law, the validity of a transfer of movable property was = governed=20 by the lex situs, the law of the country in which the property = was=20 situated at the time of the transfer.4 = According to the=20 defendant, under Italian law a purchaser acquired good title, even = against the=20 dispossessed owner, despite defects in the seller's title if he or she = acted in=20 good faith, was unaware of the unlawful origin of the goods and the = transaction=20 was accompanied by the appropriate documentation.

3.10

The plaintiff, while accepting the lex situs rule as one of = general=20 application, argued that the case had a strong connection with England = which=20 placed it beyond the rule's application. The Court rejected this = assertion and=20 applied the principle enunciated by Pollock CB in Cammell v. = Sewell5 to the = effect that=20 if =93personal property is disposed of in a manner binding according to = the law of=20 the country where it is, that disposition is binding everywhere=94. This = principle=20 was affirmed in later cases and is widely accepted as a correct

3	[1980] 1=20 All ER 1121.

4	A = number of=20 exceptions to this rule were cited, none of which was = asserted by=20 the plaintiff, for example where the purchaser has not acted = in good=20 faith, or where the English court considers the lex = situs to=20 be contrary to English public = policy.

5	(1858) 157=20 ER = 1371.

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PAGE = NUMBER=3D20=20

statement of the law. Slade J was of the view that

=93[i]ntolerable uncertainty in the law would result if the = court was to=20 permit the introduction of a wholly fictional situs, when = applying=20 the principle to any particular case, merely because the case = happened to=20 have a number of other English connecting factors=94. 6

3.11

The framers of the Convention, alive to the difficulty =96 if not the = impossibility =96 of reaching agreement on a definition of =93claims of = an=20 international character=94 have left this matter in the hands of = national=20 legislatures, courts or other competent authorities. It appears = preferable to=20 recognise that claims for the return or restitution of objects which = have=20 returned to the jurisdiction from which they were previously removed, as = in the=20 case of Winkworth, should be deemed to be =93claims of an international=20 character=94: any other approach would provide an incentive to dishonest = dealers=20 in cultural objects to remove or =93launder=94 the object through = another more=20 convenient jurisdiction and then return the goods, when appropriate, to = the=20 initial jurisdiction. If the Convention had been available to Mr = Winkworth, he=20 would have been entitled to automatic return of the objects on proof of = the=20 theft and regardless of the law relating to ownership in the place where = the=20 transfer occurred. The Convention, therefore, avoids many of the = conflicts of=20 law issues normally associated with the retrieval of objects from a = foreign=20 jurisdiction by basing the right to return on the theft of the object = under the=20 law of the State in which the taking occurred.

3.12

Although the transactions must be international in character (in the = sense in=20 which this term will be interpreted in the different Contracting = States),=20 transactions following the theft of a cultural object need not be from = one=20 Contracting State to another. Article 1(a) simply states that the = Convention=20 shall apply to the restitution of stolen cultural objects. It makes no = reference=20 to the jurisdiction in which the theft7 = occurred.8 Thus, a = claimant=20 whose cultural object is stolen in a non-Contracting State may avail of = the=20 legal regime established under the Convention as long, of course, as the = object=20 in question is removed to a state which is a Contracting State. The = decision to=20 omit such a reference was based upon the assertion that =93theft was an = act which=20 is condemned and punished under all national laws and that the proposed=20 restriction would encourage the theft of cultural objects on the = territory of=20 non-Contracting States.=949

3.13

In respect of illegally exported cultural objects, however, the = export=20 provision violated must be that of a Contracting State. Underlying the=20 distinction between this provision and that concerning stolen cultural = objects=20 was the

6	[1980] 1=20 All ER 1121 at 1132.

7	Note that=20 for the purposes of the Convention, reference will be made = to the=20 word =93theft=94 rather than =93larceny=94, the appropriate = term in Irish=20 criminal law.

8	Article=20 10(1), however, limits the circumstances in which claims in = respect=20 of stolen objects may be brought: see below, para. 3.137 = et=20 seq.

9	Unidroit=20 Secretariat, Draft Unidroit Convention and Explanatory = Report (Dec.=20 1994) in Acts and Proceedings of the Diplomatic = Conference, op.=20 cit., p. 23, para.=20 23.

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PAGE = NUMBER=3D21=20

framers' perception that:

=93only States prepared to recognise the relevant rules of = other States,=20 within the limits imposed by the [Convention], should benefit from = its=20 provisions, which would moreover constitute an incentive to States = to=20 ratify it.=9410

3.14

Finally, it should be noted that the language of Article 1(b) refers = to the=20 illicit removal of objects contrary to the law regulating export of = cultural=20 objects for the purpose of protecting its cultural heritage. Thus it is = crucial=20 that the provisions which are violated are those specially designed to = further=20 the protection of cultural heritage and not merely general provisions of = national export law. Thus the Convention will not apply to exports = deemed to be=20 illicit by reason of the failure to respect fiscal regulations.

Definition of =93cultural object=94

=93The delimitation of the category of cultural objects whose = return may=20 be requested is the most fundamental one for the scope of an = international=20 convention concerning cultural property, and at the same time one = of the=20 most delicate to resolve. The difficulties are moreover multiplied = in the=20 case of an international treaty as opposed to purely internal = protective=20 legislation since it is necessary to establish a general = definition that=20 will take account of the cultural circumstances of each State and = of its=20 particular needs. Stress was laid [by those engaged in drafting = the=20 Convention] on the difficulty of framing in abstracto an = objective=20 definition of cultural objects since the attribution of the = epithet=20 =93cultural=94 to an object is the consequence of a value = judgment.=9411

3.15

In resolving this difficult issue, the framers of the Convention have = combined a general definition of cultural object with an enumerative and = exhaustive list thereof. Article 2 provides that, for the purposes of = the=20 Convention, a =93cultural object=94 is one which:

=93on religious or secular grounds, [is] of importance for = archaeology,=20 prehistory, history, literature, art or science and belong[s] to = one of=20 the categories listed in the = Annex=94.

3.16

The list of objects set out in the Annex to the Convention is = extremely=20 extensive. It refers to;

(a)	rare collections and specimens of fauna, flora, minerals = and=20 anatomy, and objects of palaeontological=20 interest;

10=20

Prott, L=20 UNESCO and UNIDROIT: A partnership against = trafficking in=20 cultural objects, p. 13. (paper presented at the = Art Theft=20 Conference, London, November 15,=20 1995).

11=20

Ibid.

THIS IS AN = ORIGINAL=20 PAGE-BREAK:

PAGE=20 NUMBER=3D22

(b)	property relating to history, including the history of = science=20 and technology and military and social history, to the life = of=20 national leaders, thinkers, scientists and artists and to = events of=20 national importance;

(c)	products of archaeological excavations (including regular = and=20 clandestine) or of archaeological=20 discoveries;

(d)	elements of artistic or historical monuments or = archaeological=20 sites which have been = dismembered;

(e)	antiquities more than one hundred years old, such as=20 inscriptions, coins and engraved = seals;

(f)	objects of ethnological = interest;

(g)	property of artistic interest, such = as:

(i)

pictures, paintings and drawings produced entirely by = hand on any=20 surface and in any material (excluding industrial designs = and=20 manufactured articles decorated by = hand);

(ii)

original works of statuary art and sculpture in any=20 material;

(iii)

original engravings, prints and=20 lithographs;

(iv)

original artistic assemblages and montages in any=20 material;

(h)	rare manuscripts and incunabula, old books, documents and = publications of special interest (historical, artistic, = scientific,=20 literary, etc.;) singly or in = collections;

(i)	postage, revenue and similar stamps, singly or in=20 collections,

(j)	archives, including sound, photographic and = cinematographic=20 archives;

(k)	articles of furniture more than one hundred years old and = old=20 musical = instruments.

3.17

As we have seen, an object must fall within one of the above = categories=20 and be of importance, on religious or secular grounds, as far as = one of=20 the interests specified in Article 2 is concerned. In addition, the = object must=20 have been either stolen or exported contrary to the export regulations = of a=20 Contracting State.12 If it = was both=20 stolen and illegally exported, the claimant will have a choice as to = which part=20 of the Convention to invoke in order to secure return.

A. RESTITUTION OF STOLEN CULTURAL OBJECTS

1. Balancing the interests of dispossessed owners and bona = fide=20 purchasers

3.18

The task of the framers of the Convention was, in essence, to protect = cultural heritage by curbing the illicit traffic in cultural objects. = They=20 sought to

12	The law=20 regarding regulation of export from Ireland of objects with = which=20 the Convention is concerned is considered in detail in = Chapter=20 = 5.

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PAGE = NUMBER=3D23=20

fulfil this task through the introduction of uniform legal rules = regarding=20 restitution and return in the Contracting States. Thus, the framers = engaged in a=20 comparative analysis of the private law rules governing priority in = title=20 between dispossessed owner and good faith purchaser, with a view to = identifying=20 the rule which =96 if applied uniformly throughout the Contracting = States =96 would=20 most effectively hinder the illicit traffic. Attention was therefore = focused=20 upon the rules of civil law systems which tend to protect the claims of = good=20 faith purchasers against dispossessed owners; although this rule = promotes the=20 maximum marketability of cultural objects, logic and the emphatic = conclusions of=20 a number of expert studies13 point = to the fact=20 that it also promotes illicit trade. These expert studies concluded = that:

=93the only way substantially to hinder the illicit trade in = cultural=20 property is to ensure the return of cultural objects to the = original=20 holder after a theft, even at the cost of changing the rule in = many=20 European legal systems protecting the bona fide purchaser = of stolen=20 goods.=9414

3.19

The framers of the Convention heeded this advice. Article 3(1) = establishes=20 the general principle of the restitution of stolen cultural objects. The = possessor is required to comply with this principle whether or not he or = she=20 acquired the object in good faith. The fides of the possessor = only=20 assumes importance when one proceeds to consider his or her entitlement = to=20 compensation.15

3.20

Article 3(1) does not specify the party to whom the object must be = returned.=20 Although this will normally be the dispossessed owner, circumstances may = arise=20 in which a museum or art gallery, for example, which has been in = possession of=20 an object on a long term loan may pursue a claim for restitution and = find itself=20 in conflict with the owner of the objects who also seeks their return. = In the=20 event of competing claims to possession between such parties, it will be = for the=20 court of the State hearing the case to resolve competing claims = according to the=20 applicable rules of law.

2. The Common Law approach to transfer of title in stolen = property:=20 the =93nemo dat=94 rule and market overt

3.21

The approach adopted in the Convention represents a fundamental = change for=20 many civil law jurisdictions and some have already expressed = reservations about=20 their willingness to abandon their entrenched national provisions.16 It = conforms=20 closely with the position in Irish law and that in other

13	See=20 Chatelain, J., Means of Combatting the Theft of and = Illegal=20 Traffic in Works of Art in the Nine Countries of the EEC = (European Commission, XII/757/76=96E, = 1976).

14	UNESCO=20 Comments on the Draft Unidroit Convention, in Acts and = Proceeding=20 of the Diplomatic Conference, op. cit.,=20 p.93.

15	The issue=20 of payment of compensation to a bona fide possessor = in Irish=20 law is dealt with below at para. 3.66 et=20 seq.

16	See, for=20 example, Bengana, S., Sales of Works of Art: France, = the=20 International Bar Association (Paris, September 21,=20 = 1995).

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common law jurisdictions. The contrast between the position adopted = in Common=20 Law countries is one of protection of the rights of the owner while, as = a=20 general rule, the Civil Law endorses the rights of the bona fide=20 purchaser. The maxim =93nemo dat quod non habet=9417 = represents, it is=20 said, =93the most important conveyancing principle in English commercial = law=94. In=20 jurisdictions based upon the English common law, therefore, = owner-protection=20 takes priority in principle, as theft cannot give rise to a valid right = in=20 favour either of the thief or of successive holders to obtain the = property from=20 him or her directly or indirectly.18 This = principle=20 finds statutory expression in Ireland in section 21(1) of the Sale of = Goods=20 Act, 1893 which provides that:

=93[W]here goods are sold by a person who is not the owner = thereof, and=20 who does not sell them under the authority or with the consent of = the=20 owner, the buyer acquires no better title to the goods than the = seller=20 had.=9419

3.22

The principle having been established, however, the dictates of = commerce have=20 necessitated a number of exceptions.20 Only = one of the=20 exceptions, however, is relevant to situations involving theft.21 It = offers=20 protection to a bona fide purchaser of stolen objects who = acquires at a=20 market overt i.e., an open public market held on days prescribed by = charter,=20 statute or custom and conducted within daylight hours. This exception = finds=20 statutory expression in Ireland in section 22(1) of the Sale of Goods = Act,=20 1893;

=93Where goods are sold in market overt, according to the usage = of the=20 market, the buyer acquires a good title to the goods, provided he = buys=20 them in good faith and without notice of any defect or want of = title=20 on

17	One cannot=20 give what one does not have.

18	The=20 provision for prescriptive acquisition by the thief in = Section 12 of=20 the Statute of Limitations, 1957 represents an = exception to=20 this rule; infra, para. = 3.62.

19	56 & 57=20 Vict. c.71. In England, this provision was reproduced in = section=20 21(10) of the Sale of Goods Act,=20 1979.

As Denning=20 L.J. commented in Bishopsgate Motor Finance Corporation = v.=20 Transport Brakes Ltd. [1949] 1 KB 322 at 336=96337;

=93In=20 the development of our law, two principles have = striven=20 for mastery. The first is for the protection of=20 property: no one can give a better title than he = himself=20 possesses. The second is for the protection of=20 commercial transactions: the person who takes in = good=20 faith and for value without notice should get a = good=20 title. The first principle had held sway for a = long=20 time, but it has been modified by the common law = itself=20 and by statute so as to meet the needs of our = own=20 = times.=94

The other=20 exceptions modifying the nemo dat rule relate to (i)=20 situations in which the owner is, by his or her conduct, = estopped=20 from denying the seller's authority to sell (a common law = exception)=20 (ii) sales under voidable title (per section 23 of the = Sale of=20 Goods Act, 1893), (iii) circumstances in which the = seller enters=20 into a sale of goods with purchaser A, yet the seller = retains=20 possession of the goods sold and purports to sell them on to = a third=20 party. If that third party acquires the goods in good faith = without=20 notice of the prior sale, he or she will obtain a good = title,=20 provided the goods or documents of title are transferred to = him or=20 her (per section 25 of the Sale of Goods Act, 1893), = (iv)=20 section 25 also introduces another exception to the nemo = dat=20 rule, albeit arguably one of less practical significance as = far as=20 cultural objects are concerned: it provides that when a = buyer has=20 agreed to buy goods from the seller and obtains possession = with the=20 latter's consent, then he or she may sell to a bona = fide=20 third party, overriding any unpaid lien or other right of = the=20 original owner, (v) section 2(1) of the Factors Act, = 1889=20 provides that =93[w]here a mercantile agents is, with the = consent of=20 the owner, in possession of goods or of the documents of = title to=20 goods, any sale, pledge, or other disposition of the goods, = made by=20 him when acting in the ordinary course of business of = a=20 mercantile agent, shall, subject to the provisions of this = Act, be=20 as valid as if he were expressly authorised by the owner of = the=20 goods to make the same, provided that the person taking = under the=20 disposition acts in good faith, and has not at the time of = the=20 disposition notice that the person making the disposition = has not=20 authority to make the same=94: 52 & 53 Vict. c.45 = (emphasis=20 = supplied).

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the part of the seller=9422

3.23

The market overt concept =96 and its underlying rationale =96 are = perhaps most=20 easily explained by reference to the decision of the English Court of = Appeal in=20 Reid v. Metropolis Police Commissioner.23 In this = case, the=20 plaintiff's antique candelabra was stolen and subsequently purchased by = an art=20 dealer at a public market. This purchase was made in the half-light of = early=20 morning. The art dealer in question did not inquire as to the origin or = source=20 of the candelabra and almost immediately sold it on to an antiques = dealer, in=20 whose possession the candelabra was sighted by the plaintiff. In the = ensuing=20 action, the art dealer claimed that he had good title, having bought the = item in=20 market overt. In the Court of Appeal, Scarman LJ discussed the history = of the=20 market overt exception and the fact that it was the openness of the = transaction=20 which enabled a sale therein to confer a good title on a good faith = purchaser.=20 He stated:

=93When shops were scarce, the market was the place, and market = day the=20 occasion for the public to buy and sell. The market was regulated = by the=20 franchise-holder; the place, the day, and the hours of business = were=20 established under the authority of the franchise and were well = known. Thus=20 any person whose goods had been stolen would know where and when = the thief=20 was likely to seek to dispose of them, and would have an = opportunity of=20 finding and recovering them before they were sold in the open = market.=9424

3.24

In order to destroy the owner's title, however, an acquisition in = market=20 overt must be made between sunrise and sunset. As Denning L.J. = commented:

=93The goods should be openly on sale at a time when = those who=20 stand or pass by can see them. Thus it must be in the day time = when all=20 can see what is for sale; and not in the night time when no one = can be=20 sure what is going on. And if in the day time, what better test = can you=20 have than between sunrise and sunset? No half-light then, but full = daylight.=9425

3.25

In this case, the art dealer made his purchase before sunrise and as = a=20 result, the Court of Appeal ordered that the candelabra must be returned = to the=20 plaintiff-owner.

3.26

Some English commentators have suggested that the concept never = applied in=20 Ireland, but the Irish courts in Delaney v. Wallis & Son26 = proceeded upon=20 the assumption that it was operative here.27 This = case arose=20 out of a sale in the Cattle Market operated by Dublin Corporation. It = may well=20 be that only

22	56 & 57=20 Vict. c.71.

23	[1973] 2=20 All ER 97.

24	Ibid,=20 at 101=96102.

25	Ibid,=20 at 100.

26	(1884) 14=20 LR Ir 31.

27	In that=20 case, the market at issue was the New Cattle Market = established by=20 the Corporation of Dublin under the provisions of the = Dublin=20 Improvement Act (12 & 13 Vict. c.97,=20 = s.80).

THIS IS AN ORIGINAL=20 PAGE-BREAK:

PAGE = NUMBER=3D26=20

in such formal public markets does the doctrine of market overt apply = in=20 Ireland. It does not, however, appear to have been availed of in this=20 jurisdiction in the last 100 years.

3.27

In any event, the protection afforded to a purchaser in good faith at = a=20 market overt is not absolute; section 24(1) of the Sale of Goods Act, = 1893 provides that upon the conviction of the thief title = automatically=20 revests in the person from whom the object was stolen.

3.28

The rule was criticised by the Law Reform Committee of England and = Wales as=20 one which was

=93capricious in its application and we think it should either = be=20 abolished or else extended so as to cover all retail sales at = trade=20 premises as well as sales by auction. Which solution is adopted = plainly=20 depends on whether it is thought better to protect property rights = or to=20 facilitate commercial transactions ...=9428

A majority of the Committee favoured extension of the rule so that = where=20 stolen goods were bought by a purchaser either at a public auction or = =93by retail=20 at trade premises=94 in good faith and without notice of any defect in = title on=20 the part of the owner, he would acquire good title to them.29

3.29

Lord Donovan dissented on this point, arguing that if this approach = were=20 adopted purchasers of stolen property would have less to fear than they = had=20 under the existing law, making it easier for thieves to find purchasers = for=20 stolen property. He pointed out that where unique and irreplaceable = goods were=20 stolen, the provision of monetary compensation as a substitute for = restitution=20 would be =93no real recompense=94.30 O'Keefe = and Prott=20 have expressed agreement with this view, arguing that in those = jurisdictions in=20 which the market overt exception continues to apply, the law should be = amended=20 to exclude its application to cultural objects.31

3.30

Abolition of the exception was achieved in England by the Sale of = Goods=20 (Amendment) Act, 1994,32 = supported by the=20 police, antiques dealers and auction

28	Law Reform=20 Committee Twelfth Report (Transfer of Title to Chattels), = 1966,=20 (Cmnd 2958) p. 13.

Ibid.,=20 p. 16. =93Trade premises=94 was defined as =93premises open = to the public=20 at which goods of the same or a similar description to those = sold=20 are normally offered for sale by retail in the course of = business=20 carried on at those premises=94: Twelfth Report, p. 14, = para.=20 33.

30	Ibid.,=20 p. 18.

31	Law and=20 the Cultural Heritage, Volume III: Movement, op. cit., = para.=20 747, p.400.

Section 1=20 of the Sale of Goods (Amendment) Act, 1994 removed = this=20 =93senseless and antisocial medieval survival=94=96 per Lord = Oliver in the=20 House of Lords debate on the Bill. Its abolition was = welcomed by=20 many sectors in England particularly in view of the fact = that since=20 the Middle Ages, all shops in the city of London to which = the public=20 have access without permission have been deemed to be market = overt=20 every day of the week except Sundays and holidays for the = sale of=20 the type of goods normally handled by the trader. The = exception did=20 not apply, however, to goods belonging to the Crown. It was = likewise=20 inapplicable in Scotland and Wales. Section 22(3) of the = Sale of=20 Goods Act, 1893 and its successor, section 22(2) of the = Sale=20 of Goods Act 1979 specifically provided that the market = overt=20 exception did not apply to Scotland. Although Wales is not=20 specifically excluded, it would appear that there have never = been=20 such markets in Wales; see the general note on Section 22 of = the=20 Sale of Goods Act, 1979 in English Current Law = Statutes, 1979=20 (Sweet &=20 Maxwell).

THIS IS AN ORIGINAL=20 PAGE-BREAK:

PAGE = NUMBER=3D27=20

houses as well as consumer organisations.33 Its = complete=20 abolition suggests a recognition of the scale of the problem of illicit = trade=20 and acceptance of the need to place restrictions on the freedom of the=20 market.

3.31

In the context of the Convention, by expressing the obligation to = return in=20 absolute terms Article 3(1) effectively nullifies the exception in = respect of=20 claims under the Convention. The rationale on which the exception is = based =96that=20 a dispossessed owner would know where to go to retrieve his property and = would=20 have an opportunity of retrieving it before its disposal in an open = market =96 no=20 longer reflects commercial reality, nor indeed the degree of = sophistication of=20 international illicit trade. Stolen objects may quickly be transported = within=20 and across national boundaries and transferred to others involved in = illicit=20 trade before being sold to an innocent purchaser; the likelihood of = their being=20 intercepted by the owner before such sale is, therefore, extremely = remote.

3.32

As a general matter, it would seem that in logic the exception has no = place=20 in the modern commercial world and should be abolished, particularly in = respect=20 of objects of cultural significance.

3. Article 3(2) and the protection of excavated = material

3.33

Article 3 (2) provides that, for the purposes of the Convention,

=93a cultural object which has been unlawfully excavated or = lawfully=20 excavated but unlawfully retained shall be considered stolen, when = consistent with the law of the State in which the excavation took=20 place.=94

3.34

The motivation behind Article 3(2) was to ensure that objects which = were=20 procured through clandestine excavation would be afforded the maximum = protection=20 available under the Convention. Early drafts made no mention of domestic = law, so=20 that even if such objects did not constitute stolen objects under = domestic law,=20 they could be treated as such for the purposes of the Convention.

3.35

The addition of the final clause confines application of the = paragraph to=20 those situations in which the unlawful dealings with the excavated = object=20 constitute theft in the domestic criminal regime. Thus, if the criminal = law of a=20 Contracting State does not categorise such activities as theft, Article = 3(2) may=20 not be relied upon for retrieval of the material. Retrieval will then = depend on=20 whether the object has been illegally exported, in which case recourse = may be=20 had to Chapter III. The extent to which it is =93consistent=94 with = Irish law to=20 consider as stolen objects procured in this way is considered in Chapter = 4.

3.36

If the criminal law of a Contracting State deems a cultural object = which is=20 unlawfully excavated or lawfully excavated but unlawfully retained to be = a

33	It is=20 interesting to note that a similar range of bodies had = favoured its=20 abolition when asked for their views by the Law Reform = Committee in=20 preparing its Twelfth=20 Report.

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stolen object and such object is also the subject of a protective = export=20 restriction which is violated by its transfrontier movement, recourse = may be had=20 to the provisions of Chapter II on the restitution of stolen cultural = objects=20 or, alternatively, to Chapter III on the return of illegally exported = cultural=20 objects. Advantages and disadvantages attach to both options.

3.37

The principle advantage attaching to reliance on Chapter II over = Chapter III=20 is the fact that the obligation to return a stolen object is absolute. = Under=20 Chapter III, on the other hand, four =93interests=94 are set out, at = least one of=20 which must be shown to have been =93significantly impair[ed]=94 by = removal of the=20 object before return is obliged. Furthermore, there is no limitation = under=20 Chapter II on those who may pursue a claim, while claimants under = Chapter III=20 must be Contracting States. In evidential terms, Chapter III is the = better base=20 for a claim, given that it is easier to establish a breach of domestic = export=20 law than it is to prove a theft.

3.38

States which impose wide ranging export restrictions are likely, = given the=20 choice, to prefer reliance on Chapter III. This does not, however, avail = the=20 private owner unless the State is willing to seek return on the owner's = behalf.=20 Questions of locus standi do not arise in this context given that = a State=20 is entitled to pursue a claim under the Convention solely on a breach of = national export law. Conversely, if the State wishes to pursue an object = stolen=20 from an historic site which is not covered by export restrictions, = problems of=20 locus standi may arise for the State where it is not the owner of = the=20 site. Where the object is one in which the State has an interest, for = example in=20 preserving the site for the benefit of the public, it is likely that = this would=20 constitute sufficient standing.

4. Limitation Periods

3.39

Article 3(3) =96 (8), which set out the operative limitation periods = within=20 which an action for the restitution of a stolen cultural object must be = brought,=20 were among the most hotly contested provisions during the drafting = history of=20 the Convention. Some negotiating States argued against imposing any = limitation=20 period on the ground that it would add legitimacy to a situation which = was from=20 the beginning tainted with illegality. Those who insisted upon the = inclusion of=20 time limitations argued that the imposition of such periods, especially = of short=20 periods, would encourage potential claimants to act with desirable = expedition=20 and thus avoid the disruption of long established possessions. These two = schools=20 of thought corresponded roughly with the exporting and the importing = countries=20 respectively. By way of compromise, it was ultimately agreed that there = should=20 be two limitation periods.

3.40

In general, a claim must be brought within 3 years of the time when = the=20 claimant came to know the location of the object and the identity of its = possessor, with an upper limit of 50 years from the date of the theft. A = special=20 regime was introduced for cultural objects forming an =93integral part = of an=20 identified monument or archaeological site, or belonging to a public=20 collection=94, to which

THIS IS AN ORIGINAL=20 PAGE-BREAK: PAGE = NUMBER=3D29=20

no upper time limit applied. The = claimant=20 would, however, be bound by the three year limit referred to above.

(a) Special regime in respect of tribal and indigenous=20 communities

3.41

Article 3(8) provides that claims for the restitution of sacred or = communally=20 important objects belonging to and used by a tribal or indigenous = community=20 shall have the same limitation period as that applicable to those which = fall=20 within the terms of Article 3(4).

3.42

International law has assigned specific meanings to the terms = =93tribal and=20 indigenous communities=94 an International Labour Organization = Convention refers=20 to

(a) tribal peoples in independent countries whose social, = cultural and=20 economic conditions distinguish then from other sections of the = national=20 community, and whose status is regulated wholly or partially by = their own=20 customs or traditions or by special laws or regulations; and (b) = peoples=20 in independent countries who are regarded as indigenous on account = of=20 their descent from the populations which inhabited the country, or = a=20 geographical region to which the country belongs, at the time of = conquest=20 or colonisation or the establishment of present state boundaries = and who,=20 irrespective of their legal status, retain some or all of their = own=20 social, economic, cultural and political institutions.34

3.43

It would appear that no community in this jurisdiction satisfies = these=20 requirements. The Report of the Task Force on the Travelling = Community=20 refers with approval to a definition of Travellers as

=93... an identifiable group of people, identified both by = themselves and=20 by other members of the community (referred to for convenience as = the=20 =93settled community=94) as people with their own distinctive life = style,=20 traditionally of a nomadic nature but not now habitual wanderers. = They=20 have needs, wants and values which are different in some ways from = those=20 of the settled community.=9435

3.44

Travellers maintain a distinctive culture and language but are not=20 distinguishable from the =93settled community=94 on the basis of descent = from a=20 population which was present at the time of colonisation. The special = regime=20 available under the Convention does not, therefore, apply to Travellers = so that=20 artefacts of cultural importance to that community would depend for=20 protection

34	The=20 International Labour Organisation's Convention Concerning = Indigenous and Tribal Peoples in Independent Countries, = 1989=20 (No. 169).

35	Report=20 of the Task Force on the Travelling Community, July, = 1995, para.=20 1.5. The definition was developed by the Travelling = People Review=20 Body which reported in=20 1983.

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PAGE = NUMBER=3D30=20

on provisions elsewhere in the Convention. The Annex to the = Convention refers=20 to =93objects of ethnological interest=94 given that there is movement = towards=20 recognition of Travellers as an ethnic group,36 it is = to be hoped=20 that objects of cultural significance specifically to Travellers will be = afforded protection under this provision.

3.45

Notwithstanding the authority which Article 9 grants to Contracting = States to=20 utilise more generous limitation periods than those set out in Article = 3(3), the=20 negotiating States:

=93agreed that an exceptional regime could be contemplated for = those=20 objects which lie at the very heart of each State's cultural = heritage,=20 namely those objects belonging to public collections, which often = enjoy a=20 special legal status in some countries. This exception is dealt = with in=20 paragraph 4 of Article 3 and is based on the solution to be = found=20 in Article 7 of the EEC Directive under which this category of = objects is=20 subject to a longer limitation period of seventy-five = years=94.37

3.46

The adoption of the principle of imprescriptibility in an unqualified = manner=20 would have rendered the Convention unacceptable to many States, = particularly to=20 those with substantial art-markets whose accession is essential to its = success.=20 Consequently, Article 3(5) was added, which enables Contracting States = to=20 declare that they will apply a limitation period of seventy five years = or more=20 in respect of those objects which are the subject of Article 3(4).

3.47

The second sentence of Article 3(5), which states that a declaring = State=20 =93shall also be subject to that time limitation=94 prevents declaring = states from=20 having it both ways, however: in respect of claims made by a declaring = state the=20 limitation period which governs is that which it has declared so that = the=20 declaration operates both to its benefit (where a claim is made against = it) and=20 to its detriment (where it makes a claim against another state).

3.48

Notwithstanding the difficulty, referred to earlier, of = compartmentalising=20 States neatly as exporting and importing States, Ireland may under = modern=20 conditions be characterised as an =93exporting State=94 it is thought, = therefore, to=20 be in our interest not to make a declaration, thus availing of the = Article 3(4)=20 option of imprescriptibility. The practical benefit in doing so is, = however,=20 unclear: assuming that importing states will, by and large, favour time=20 limitation, in any dispute between Ireland and an importing state it = will be=20 that state's limitation

The=20 Committee on the Elimination of Racial Discrimination, which = was=20 established under Article 8 of the Convention on the = Elimination=20 of all Forms of Racial Discrimination, 1965, has = expressed=20 concern about the =93lack of adequate protection [in = Northern Ireland]=20 available to ethnic minorities including, in particular,=20 Travellers and persons of Chinese origin=94. The Task = Force on the=20 Travelling Community points out that this demonstrates that=20 Travellers are considered an ethnic group for the purpose of = the=20 Covenant: para. CR.12.1, pp.95=966. The Programme for a = Partnership=20 Government 1991=961997 states that the Government will = ratify this=20 Convention. Legislation is required in order for Ireland to = fulfil=20 its obligations under the Convention; both the Equal Status = Bill and=20 the Employment Equality Bill contained provisions aimed at = achieving=20 this. Both Bills have, however, been declared = unconstitutional and=20 are currently being redrafted: In the Matter of the = Employment=20 Equality Bill, 15 May, 1997; In the Matter of the = Equal=20 Status Bill, 19 June, = 1997.

37	Unidroit=20 Explanatory Report in Acts and Proceedings of the = Diplomatic=20 Conference, op. cit., p.28, para.=20 48.

THIS IS AN ORIGINAL=20 PAGE-BREAK:

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period rather than our provision for imprescriptibility which will = govern. We=20 stand to benefit from the absence of a time limitation only where we are = involved in a claim against a state which likewise has not made a = declaration. A=20 state which has not limited the time within which a claim in respect of = Article=20 3(4) may be brought is likely to be an exporting state assuming = that such=20 states will, like Ireland, favour imprescriptibility in the belief that = it will=20 maximise their chances of retrieval.

3.49

The second sentence of Article 3(5) overlooks the situation where a = claim=20 arises between two declaring States, as opposed to a claim between a = declaring=20 State and one which has made no declaration and therefore has no upper = time=20 limit. In the event of a claim in respect of an object stolen in one = declaring=20 state against another declaring state, a question arises as to which = time limit=20 governs in the event of a conflict. It is necessary to refer to the = policy=20 reasons behind the section in resolving this question since the wording = of the=20 Convention is unhelpful. Given that the purpose of the second sentence = was to=20 impose the burden of a declaration on a state wishing to benefit by it, = it would=20 seem that State A (with a period of 75 years) which makes a claim in = State B=20 (with a period of 100 years) will be bound by the 75 year limit (a = declaration=20 being burdensome on the state making it). A claim made by B in A will = also be=20 bound by A's 75 year limit, as A must benefit as well as be burdened by = its=20 declaration.

3.50

By contrast, if State X, with no limitation period, makes a claim in = Y, with=20 a 75 year limitation period, the wording is unambiguous: a = =93Contracting State=20 may declare that a claim is subject to a time limitation of 75 years or = such=20 longer period as is provided in its law=94 so that X's claim is subject = to the 75=20 year limit regardless of its own law. Similarly, if Y makes a claim in = X, Y=20 cannot benefit from the absence of limitation in X because =93a claim = made in=20 another Contracting State=94 for restitution of an object displaced from = a=20 =93Contracting State making such a declaration shall also be subject to = that time=20 limitation=94, that is, the period imposed by the declaring State.

3.51

It is significant that the Article does not allow States which have = opted for=20 imprescriptibility to impose this on those States which have not done = so, so=20 that while the Article purports to favour no limitation, in practice it = effects=20 the opposite. The drafters may have been better advised to effect a = compromise=20 by laying down a longer limitation period in respect of particular = classes of=20 object. They would thereby have appeased importing states by maintaining = the=20 principle of limitation while at the same time satisfying concerns of = exporting=20 states that they would be in a position to pursue objects within a=20 satisfactorily lengthy period from the time of the theft.38

The=20 confusion arising under the Convention does not arise under=20 Directive 93/7, Article 7(1) simply providing that in those = States=20 which do not apply limitation periods the 75 year period = will not=20 apply. Thus, proceedings brought there in respect of the = special=20 class of objects will not be time limited, even if the = requesting=20 State does apply the 75 year limitation in proceedings = brought in=20 its own=20 jurisdiction.

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3.52

Evidence from interested professionals in this jurisdiction suggests = that, as=20 a rule, objects =93surface=94 in foreign markets very quickly after = their theft. It=20 has also been said that important and recognisable objects are kept off = the=20 market for a considerable number of years by, for example, = =93freezing=94 them in=20 bank vaults. It is, nonetheless, difficult to imagine a situation in = which a=20 thief or a =93handling=94 dealer would keep the object frozen for a = period exceeding=20 the average person's working life, thus reducing =96 if not negativing = =96 any=20 benefits he or she might derive therefrom. The 50 year ceiling may, in = practice,=20 represent an adequate limitation period.

3.53

We consider first those cultural objects to which Article 3(4) = applies.=20 Consideration will then be given to the advisability of introducing a = limitation=20 period of seventy-five years or more in respect of those objects. If a=20 Contracting State wishes to impose a limitation period of 75 years or = more in=20 respect of objects described in Article 3(4), it must do so by entering = a=20 declaration at the time of signature, ratification, acceptance or = approval.39 No = declaration is=20 required if imprescriptibility is favoured.

3.54

Objects shall be deemed to =93belong to a public collection=94 for = the purposes=20 of Article 3(4) if they are owned by:

(a)	a Contracting State,

(b)	a regional or local authority of a Contracting=20 State,

(c)	a religious institution, or

(d)	an institution that is established for an essentially = cultural,=20 educational or scientific purpose in a Contracting State and = is=20 recognised in that State as serving the public interest.⁴⁰

3.55

The text of the Convention does not provide guidance as to the nature = or=20 extent of State recognition required to bring objects within the scope = of=20 Article 3(7)d. To suggest that gestures such as endorsement by public=20 representatives of the work of a cultural, educational or scientific = institution=20 is surely to overstretch the meaning of the words in this context; = whether, on=20 the other hand, the recognition must have legal force is another matter. = Clearly, Article 3(4) does encompass those situations in which the State = gives=20 legal recognition to the institution which owns the public collection in = question; in fact an early draft of the Convention made explicit = reference to=20 =93tax exemptions=94 as one such acceptable form of recognition. In = Ireland,=20 cultural, educational or scientific institutions, amongst others, which = show to=20 the satisfaction of the Revenue Commissioners that they were established = for=20 purely charitable purposes,

39	Per=20 Article 3(6).

40	Per=20 Article = 3(7).

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PAGE = NUMBER=3D33=20

can avail of an extensive range of tax benefits.41 An = organisation=20 is deemed to be charitable if it is engaged in the advancement of = education or=20 of religion, the relief of poverty or other works of a charitable nature = beneficial to the community. Institutions carrying out cultural = functions would=20 satisfy the last criterion.42

3.56

Certain tax benefits may also accrue to those who permit the public = to have=20 reasonable access to their building, the building being one which is = deemed by=20 the Commissioners of Public Works intrinsically to be of significant = historical,=20 architectural or aesthetic interest.43 It is, = however,=20 open to question whether an owner/occupier can reasonably be described = as an=20 =93institution=94 for the purposes of Article 3(4), although if a = company owns or=20 occupies the building in question it is more likely to be regarded as an = =93institution=94. The same queries apply to the exemption from capital = acquisitions=20 tax enjoyed in respect of pictures, prints, books, manuscripts, works of = art,=20 jewellery, scientific collections or other things not held for the = purposes of=20 trade which are deemed by the Commissioners of Public Works to be of = national,=20 scientific, historic or artistic interest, which are kept permanently in = the=20 State except for authorised absences and in respect of which there are=20 reasonable facilities for viewing by the public, recognised bodies or=20 associations of persons.44

3.57

The object must also be =93inventoried or otherwise identified=94 in = order to=20 attract the limitation period afforded to =93object[s] belonging to a = public=20 collection=94 for the purposes of the Convention.45 Thus, = for=20 example, national monuments which are owned by the State and in respect = of which=20 the Commissioners of Public Works are obliged, pursuant to section 12(1) = of=20 The National Monuments (Amendment) Act, 1994, to maintain a = record would=20 satisfy this criterion. The Commissioners are also obliged to maintain a = record=20 of those places in which they believe such monuments to be; in such=20 circumstances is the object itself deemed to be =93inventoried or = otherwise=20 identified=94 or does

For=20 example, income tax relief may be obtained pursuant to = Sections 333=20 and 334 of the Income Tax Act, 1967, incorporated = companies=20 may obtain benefits under Sections 11 (6) and 13(2) of the=20 Corporation Tax Act, 1976; benefits may also be = obtained=20 under Section 22 of the Capital Gains Act, 1975, = Section 38=20 of the Finance Act, 1986 (Deposit Interest Retention = Tax),=20 Capital Acquisitions Tax Act, 1976 and Section 108(a) = of the=20 Finance Act, 1984 (both capital acquisition tax = benefits),=20 pursuant to Section 50 of the Finance Act, 1979 = (stamp duty=20 on a transfer or lease of land) and, finally, Section 112(b) = of the=20 Finance Act, 1993 (probate tax). As a rule, = charitable=20 organisations are not regarded as carrying on their = activities in=20 the course or furtherance of business and would not = therefore=20 normally be required to register and account for VAT. This = does not=20 mean, however, that they are entitled to purchase goods or = services=20 free of VAT.

National=20 cultural institutions, as defined in the National Cultural=20 Institutions Act, 1997, would clearly satisfy the criteria = in=20 Article 3(7)d, given that they are established for cultural, = educational or scientific purposes and are recognised, by = statute,=20 as serving the public interest: see section 45 of Act. It is = questionable whether smaller, privately owned galleries = which are=20 open to the public on a limited basis would so=20 qualify.

See Section=20 19 of the Finance Act, 1982 which provides income tax = or=20 corporation tax relief to the owner/occupier of an approved = building=20 in respect of repair, maintenance or restoration. Such = expenditure=20 may be treated as if it were a loss in a separate trade = carried on=20 by the owner/occupier and the standard rules for giving tax = relief=20 for such a loss will then = apply.

44	Section 55=20 of the Capital Acquisitions Act,=20 1976.

As we have=20 seen, the terms of Article 3(4) also apply to objects which=20 constitute integral parts of identified monuments or=20 archaeological sites. Reference to Article 3(7) and the = words=20 =93inventoried or otherwise identified=94 helps to clarify = what the=20 drafters had in mind when referring to such objects.=20 =93Identification=94 must, therefore, be understood to refer = to the=20 various methods by which such matters as the existence,=20 characteristics, condition, location and ownership of the = object may=20 be recorded. It embraces, inter alia, the scheme = established=20 pursuant to Section 12(1) of the National Monuments = (Amendment)=20 Act, = 1994.

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identification refer only to the location? A record of the place in = which it=20 is believed national monuments are located is surely a form of = identification of=20 the monument itself. The position as regards archaeological objects, = however, is=20 not as satisfactory as many items of vital cultural importance would not = meet=20 the criterion imposed in order to secure the protection of Article 3(4). = It is=20 obvious that the opportunity does not arise to inventory or otherwise = identify=20 many archaeological objects taken at source. Such objects may = nonetheless enjoy=20 the added protection of Article 3(4) if they are deemed to constitute = =93an=20 integral part of an identified archaeological site=94, as, for example, = is the=20 case if it is integral to a site recorded under section 12 of the 1994 = Act. In=20 the event that the extraordinary regime contained in Article 3(4) does = not=20 apply, the provisions of the standard limitation periods set out in = Article 3(3)=20 will nonetheless have effect.

(b) Should Ireland enter an Article 3(5) = declaration?

3.58

Having identified the subject matter to which Article 3(4) applies, = it is=20 necessary to consider the question of whether claims for the restitution = of such=20 objects should be subject to time limitation, as provided for in Article = 3(5).=20 The option which paragraph 5 presents appears advantageous at first = glance, at=20 least for Member States of the European Community, given that = Directive 93/7=20 on the return of cultural objects unlawfully removed from the territory = of a=20 Member State makes provision for an exceptional limitation period of = seventy-five years =96 or such longer period as is provided in domestic = law46=96 for = certain=20 illegally exported cultural objects.

3.59

Many objects are, of course, both stolen and illegally exported. = There may=20 indeed be merit in applying the same period under both the Convention = and the=20 Directive in respect of objects which are both stolen and illegally = exported.=20 The adoption of a seventy five year period, however, would not = necessarily=20 entail a harmonious relationship between the two instruments as a number = of=20 other differences remain between them. The Directive provides that a = claimant=20 must bring a claim within one year of learning of the location of = the=20 cultural object and the identity of its possessor or holder. More = important,=20 perhaps, is the fact that the definitions of those objects to which the = special=20 limitation periods shall apply are not always co-extensive. Thus, for = example,=20 the definition of public collection in the Directive does not encompass = objects=20 owned by a private institution, unless the institution is significantly = financed=20 by the Member State in question.47 As we = have seen,=20 such objects could attract the protection of the Convention as long as = their=20 owner institution is established for an essentially cultural, = educational or=20 scientific purpose in a Contracting State and is recognised as serving = the=20 public interest.

3.60

Thus, an object owned by an institution which met the UNIDROIT

46	Article=20 7(1) allows Member States which do not impose time limits to = apply=20 these rules to claims under the Directive; it also allows = States=20 which conclude bilateral agreements to lay down a period = exceeding=20 75 years.

47	See Article=20 1, = Directive.

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criteria but failed those set out in the Directive would, if stolen = and=20 illegally exported, be subject to different regimes. The fact that = Ireland has=20 opted for the 75 year limitation period under the Directive does not, = therefore,=20 represent a compelling argument against departing from that period in = the case=20 of the Convention.

3.61

The Convention itself sets out different limitation periods for = stolen and=20 illegally exported objects. There is no exceptional regime akin to that = set out=20 in Article 3(4) in respect of illegally exported objects. Thus, if an = object=20 which satisfies the criteria set out in Article 3(4) is stolen in one = Member=20 State and illegally exported to a non-Member State, it shall =96 as a = stolen=20 object =96 be subject to a minimum limitation period of 75 years (and = possibly to=20 no limitation period at all), whilst, if treated as an illegally = exported=20 cultural object, it shall be subject to a ceiling of fifty years. (The = three=20 years requirement applies throughout). The framers of the Convention did = not,=20 therefore, feel compelled to apply identical limitation periods in = respect of=20 stolen and illegally exported cultural objects where the object was one = with=20 which Article 3(4) was concerned.

3.62

Although Irish law does not expressly provide that a claimant shall = have an=20 unlimited time within which to assert his or her title by pursuing an = action for=20 restitution, it is submitted that the principle of imprescriptibility is = consistent with many of the principles underlying our domestic cultural = heritage=20 law, as expressed by the Supreme Court in the Webb case48 and in = the=20 National Monuments (Amendment) Act, 1994. The Act does not, = however,=20 provide alternative limitation periods =96 or no limitation at all =96 = in respect of=20 objects to which the State may claim ownership. Therefore, the = possessors could,=20 in theory, with the passage of time and despite their offence, obtain = title to=20 the archaeological object in question. Section 12(1)(b) of the = Statute of=20 Limitations, 1957, states that the title of the owner shall be = quieted after=20 the passage of the relevant limitation period of six years from the date = of the=20 commission of the tort of detinue, that is, from the date of the = possessor's=20 refusal to accede to the owner's request for the return of the = object.49 It is = difficult=20 to envisage circumstances in which the State would allow six years to = pass after=20 such a refusal. But, more importantly, the State is unlikely to pursue = this=20 option, in the light of Section 9 of the National Monuments = (Amendment) Act,=20 1994 which states that, where it is reported to the Director of the = National=20 Museum or a designated person that any archaeological object has been = found in=20 the State after the 21st November 1994 the Director shall, as soon as=20 practicable, take possession of such object and retain it on behalf of = the=20 State. The adoption of such a route avoids the possibility of time = running=20 against the State and consequently of the loss of title.

3.63

In conclusion, although the Statute of Limitations, 1957 = applies to=20 archaeological objects as defined which are found after the coming into = force=20 of

48	Webb v.=20 Ireland [1988] IR 353.

49	The effect=20 of this section seems for all practical purposes to be to = vest title=20 in the wrongdoer even though, in extinguishing the owner's = title, it=20 does not explicitly do so; see further, para.=20 = 6.34.

THIS IS AN ORIGINAL=20 PAGE-BREAK:

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the Act of 1994, thereby presenting the possibility of the loss by = the State=20 of its title, it is submitted that this eventuality is unlikely to = materialise=20 in practice. Furthermore, such an outcome would be contrary to the = spirit of the=20 National Monuments legislation which reflects the philosophy that the = State=20 should, as custodian of the interests of the People, own such objects of = national importance and should further prevent dealings with them by = private=20 parties.

3.64

Nonetheless, it remains a possibility, in theory at least, that the = State=20 could lose its title by virtue of the application of the Statute of=20 Limitations, 1957. In order to avoid this outcome, we are of the view = that a=20 provision should be introduced expressly overriding the limitation = periods=20 provided in the Statute of Limitations, 1957; such provision should = state that=20 the limitation periods provided in the implementing legislation shall = have=20 effect in place of any other enactment as to the limitation of = actions.

3.65

On balance, we are of the view that Ireland should not enter an = Article=20 3(5) declaration, but instead should impose no limitation period in = respect of=20 the objects described in Article 3(4). We have pointed out that the=20 practical benefit for Ireland in doing so is at present unpredictable, = depending=20 as it does on whether other States adopt a similar view. It is worth = noting in=20 this regard that of the 22 States which signed the Convention, only one = =96 the=20 Netherlands =96 entered a time limiting declaration. We are of the view = that to=20 adopt a position which favours maximum return is consistent with the = ideological=20 precepts underlying the Convention. States should not seek to benefit = from the=20 acquisition in dubious circumstances of objects from States which may = not, for=20 political or economic reasons, be in a position to adequately protect = their=20 national heritage.

5. Compensation for the return of stolen cultural = objects

3.66

Although the protection of the bona fide purchaser represents = a vital=20 component of the commitment of many negotiating States to the free = circulation=20 of goods, there was, nonetheless, a willingness on the part of many = States which=20 had traditionally offered legal protection to such a purchaser to change = their=20 law as far as cultural objects were concerned. This change would, = however, have=20 been politically unfeasible, and indeed, in some jurisdictions, legally=20 impossible unless, in return, the Convention made provision for the = payment of=20 compensation to a purchaser deprived of the object which he or she = acquired in=20 good faith. Thus, Article 4(1) was included which states that:

=93The possessor of a stolen cultural object required to return = it shall=20 be entitled, at the time of its restitution, to payment of fair = and=20 reasonable compensation provided that the possessor neither knew = nor ought=20 reasonably to have known that the object was stolen and can prove = that it=20 exercised due diligence when acquiring the=20 object.=94

3.67

The provision of compensation was not, however, uncontested. The = reluctance=20 of some States was based on difficulties in domestic law while = in

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others, often developing = countries, the lack=20 of financial resources available to pay compensation was the principal=20 concern.

3.68

The issue of compensation is also affected by the provisions of = Article 9,=20 which permits States to apply rules =93more favourable to the = restitution or=20 return=94 of cultural objects than those provided in the Convention. It = is clear=20 from the drafting history of Article 9, if not from the text itself, = that it is=20 not obligatory for Contracting States to provide for payment of = compensation.=20 This is so despite the mandatory language in Article 4(1). Article 9 was = included as a means of ensuring that States which go beyond the = Convention in=20 terms of protection of the dispossessed owner, for example by not = requiring him=20 to pay compensation to the possessor, should be facilitated in = continuing to do=20 so. The Convention sought to lay down only minimum rules of protection = and=20 therefore should not impede States which afford further protection.50

3.69

There was disagreement as to whether an exhaustive list of the = situations in=20 which States could employ rules more favourable to restitution or return = should=20 be provided, for example the refusal of compensation to a good faith = purchaser=20 of stolen objects or the extension of limitation periods. Ultimately, it = was=20 decided that to do so could prove counter-productive in that it could = result in=20 certain situations being inadvertently omitted.51

3.70

That Article 9 is aimed at the more favourable treatment of = claimants=20 is not immediately evident from the text of the Article. When read = without=20 reference to the Preamble52 or the = travaux=20 preparatoires, one could equally assert that it is the provision of=20 compensation which is more favourable to return since it would increase = the=20 willingness of a possessor to deliver up an object.

3.71

Article 9 reflects the philosophy behind the Convention, which was to = increase the diligence required of prospective purchasers. The most = effective=20 way to achieve this would have been to provide for return without = compensation;=20 however, certain States would have been presented with constitutional=20 difficulties if restitution or return were required in the absence of=20 compensation.53

3.72

Given that Article 4 makes the payment of compensation a prerequisite = to=20 return (a possessor =93shall be entitled, at the time of = its=20 restitution=94), in those States in which the law requires compensation = of bona=20 fide possessors, claimants will be obliged to so pay before the = object will=20 be returned. The practical effect

Unidroit=20 Explanatory Report in Acts and Proceedings of the = Diplomatic=20 Conference, op.cit., para. 122, p.41. Unesco in its = Comments on=20 the Draft Convention stated that

=93at=20 no stage was it ever intended to suggest that = national=20 systems which already provided for return of = stolen=20 cultural objects without compensation to the = possessor=20 should change this rule by providing = compensation.=94 (at=20 = p.234).

51	Unidroit=20 Explanatory Report in Acts and Proceedings of the = Diplomatic=20 Conference, pp.41=962 paras. = 122=96127.

=93Emphasising=20 that this Convention is intended to facilitate the = restitution and=20 return of cultural objects, and that the provision of any = remedies,=20 such as compensation needed to effect restitution or return = in some=20 States, does not imply that such remedies should be adopted = in other=20 States=94.

53	Unesco=20 Comments in Acts and Proceedings of the Diplomatic=20 Conference,=20 p.234.

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of Article 9 on the operation of Article 4 is, therefore, that States = which=20 choose to rely on Article 9 will avoid this result, thereby entitling = claimants=20 to automatic return.

3.73

It should be noted, however, that a decision to apply alternative = rules is a=20 unilateral act which does not place any obligation on other States to = apply=20 those rules. Should Ireland decide not to alter its law so as to provide = compensation to a possessor of a stolen object, this would only affect = claimants=20 before an Irish court. Should an Irish claimant pursue a possessor = before the=20 courts in the possessor's jurisdiction, that claimant may be ordered by = the=20 competent authority in that jurisdiction to pay compensation to the = possessor.=20 Accession to the Convention will place an obligation on the Irish courts = to=20 enforce such an award notwithstanding the fact that a similar award = cannot be=20 made by the Irish equivalent of the awarding foreign authority.54 Article = 9(2)=20 relieves States which do not depart from the provisions of the = Convention of the=20 obligation to enforce decisions of foreign authorities which do so = depart; it=20 does not, however, confer a similar latitude on Contracting States which = depart=20 from the Convention by not providing compensation to refuse to enforce = decisions=20 of competent authorities which abide by the Convention regime.

(a) Defence of due diligence

3.74

Those States which wish to provide for compensation in respect of = stolen=20 objects will be required to do so only in very limited circumstances. In = practice, it is unlikely that many possessors will successfully = establish that=20 they exercised due diligence when acquiring the stolen object and still=20 proceeded to acquire it. The fact that Article 4 imposes upon the = possessor the=20 obligation of showing that he or she exercised due diligence is also = extremely=20 significant. This represents a considerable departure from the situation = which=20 prevails in a number of civil legal systems in which the good faith of = purchaser=20 or possessor is assumed, the burden being on claimants to establish = mala=20 fides. Such a situation often:

=93left unchallenged a very large area where purchasers simply = did not=20 pursue inquiries, through apathy, ignorance or intent, and were=20 nonetheless protected by the rules as to good faith. This has = enabled a=20 large share of cultural objects in the international market to be=20 transferred as a matter of course without clear evidence of=20 provenance.=9455

3.75

The decision to impose upon the possessor the burden of showing that = he or=20 she exercised due diligence ought to make significant inroads into these = practices. Indeed, this entire Article seeks to offer incentives to = dealers and=20 others to act in good faith and to penalise those who fail to make = adequate

54	Enforcement=20 of judgments and the changes to our law which would be = necessitated=20 by accession are considered at para. 6.5 et=20 seq.

55	UNESCO=20 Comments on the Draft Convention, in Acts and Proceedings = of the=20 Diplomatic Conference,=20 p.97.

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inquiries in relation to the origin of objects with which they come = into=20 contact. It is hoped that, faced with the prospect of losing the object = in=20 question without compensation, potential purchasers will refrain from = proceeding=20 to purchase unless satisfactory provenance is forthcoming. This = reluctance to=20 purchase =93unauthenticated=94 objects will, in turn, reduce the market = for stolen=20 objects and should ultimately, therefore, have a deterrent effect upon = the level=20 of theft of cultural objects.

3.76

In determining whether a possessor did in fact exercise due diligence = in the=20 course of the acquisition of an object, the court or other competent = authority=20 seised of the issue shall, in accordance with Article 4(4), have regard = to:

=93all the circumstances of the acquisition, including = the=20 character of the parties, the price paid, whether the possessor = consulted=20 any reasonably accessible register of stolen objects, and any = other=20 relevant information and documentation which it could reasonably = have=20 obtained, and whether the possessor consulted accessible agencies = or took=20 any other step that a reasonable person would have taken in the=20 circumstances.=9456 = (italics=20 supplied)

3.77

Article 4(5) attempts to eradicate a practice by which possessors who = acquire=20 with knowledge of the illicit provenance of an object attempt to attract = for=20 themselves the mantle of good faith. Many museums are bound by the code = of=20 ethics propounded by the International Council of Museums which = prohibits the=20 acquisition of objects which have been stolen, illegally exported or=20 clandestinely excavated. It has been reported that some museums have = avoided=20 this prohibition by encouraging potential donors to acquire an object in = which=20 the museum is interested, in the expectation that the museum will = ultimately=20 receive the desired object as a gift.

3.78

The fear expressed by some states that they would in practice be = precluded=20 from securing the restitution of objects stolen from their jurisdiction = by an=20 obligation to pay the price paid or the object's commercial value proved = misplaced: should the court or other competent authority seised of the = issue=20 concede that the possessor did in fact act with due diligence when = acquiring the=20 object, he or she shall be entitled to fair and reasonable = compensation.=20 The Convention does not set out any criteria with which to guide judges = upon=20 whom falls the task of deciding the quantity of compensation to be = awarded.=20 Nonetheless, the drafters noted that:

=93the concept of fair and reasonable compensation [lays] down = a very=20 strict limit on compensation and [allows] regard to be had to the=20 restricted financial resources of some claimants. It was observed = that a=20 specific reference to the price paid or to the object's commercial = value=20 would encourage the judge to give too much weight to those factors = in

56	It should=20 be noted that in recent years international databases of = stolen=20 cultural objects have been created to which ready access is=20 = available.

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determining what is fair and reasonable and the [drafters] = therefore=20 preferred to leave it to the discretion of the judge to reach the = same=20 result. It may likewise be recalled that in public international = law in=20 connection with compensation for nationalisation, judges have for = many=20 years applied this notion on the understanding that it may = correspond to a=20 sum lower, and sometimes very much lower, then the real commercial = value=20 of the object or the price actually paid for it.=9457

(b) Who is liable for the payment of = compensation?

3.79

Guidance on this question is only partially to be found in Article = 4(2) and=20 (3) which establish that:

=93(2) Without prejudice to the right of the possessor to = compensation=20 ... reasonable efforts shall be made to have the person who = transferred=20 the cultural object to the possessor, or any prior transferor, pay = the=20 compensation where to do would be consistent with the law of the = State in=20 which the claim is brought.

(3) Payment of compensation to the possessor by the claimant, = when this=20 is required, shall be without prejudice to the right of the = claimant to=20 recover it from any other person=94.

3.80

Thus in essence, the Convention envisages that the possessor shall = obtain=20 compensation from one of the parties in the chain between theft and his = or her=20 acquisition of the object, at least where that is consistent with the = law of the=20 Contracting State seised of the claim.

3.81

While Irish law does not provide for the payment of compensation to = bona=20 fide purchasers, it does, however, permit him or her to secure = repayment=20 from the person from whom he or she acquired the object in question. = There are=20 two possible (and alternative) bases for such a claim. On the one hand, = reliance=20 may be placed upon Section 12 of the Sale of Goods Act, 1893 = which=20 inserts into contracts for the sale of goods:

=93an implied condition [t]hat the seller has the right to sell = the goods=20 and, in relation to an agreement to sell, that the seller will = have the=20 right to sell the goods, at the time property is to=20 pass=94.

3.82

Breach of this condition entitles the purchaser to an award of = damages=20 comparable to the price paid. The fact that the seller acquired the = goods in=20 good faith, believing that he or she thereby acquired good title does = not affect=20 the purchaser's claim.58 Is such = a claim=20 affected, however, by the bad faith of the

57	Unidroit=20 Explanatory Report, in Acts and Proceedings of the = Diplomatic=20 Conference, p.30, para. = 60.

58	See, for=20 example, the decision of the High Court in O'Reilly v.=20 Finnegan [1942] IR Jur. Rep.=20 36.

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purchaser? In the absence of specific reference to this issue in the = Act, the=20 answer to this question may be derived from the maxim that a statute = shall not=20 be used as an instrument of fraud. It is also arguable that the fact = that a bad=20 faith purchaser does not place reliance upon the alleged title of the = purchaser=20 when deciding to proceed to purchase may deprive him or her of the right = to=20 recover in such circumstances. This conclusion is reached by analogy = with a=20 number of cases concerning section 13 of the Sale of Goods Act, = 1893,=20 which states that it shall be an implied condition of sales by = description that=20 the goods sold shall correspond with the description rendered. The case = law=20 qualifies this assertion somewhat, with the result that only those = buyers who=20 placed reliance upon the description may obtain damages for breach of = this=20 condition. Section 61(1) of the Sale of Goods Act, 189359 = provides,=20 however, that this statutorily implied condition as to good title may, = however,=20 be circumvented by the parties to an international contract for the sale = of=20 goods. Although the Act does not define the characteristics of an = =93international=20 contract=94, it is deemed to arise where the places of business of the = parties to=20 the contract are located in different states; regard is also had to the = fact=20 that the sale transaction involves =93the movement of goods from one = state to=20 another.=94⁶⁰ The=20 parties to such an agreement may, however, only circumvent the terms of = section=20 12 by precise and clear drafting.61

3.83

Alternatively, a purchaser may elect to pursue a restitutionary claim = by=20 alleging total failure of consideration. In this context, the term=20 =93consideration=94 has a narrower meaning than that which it enjoys = when=20 determining whether a binding contract has been formed; failure of = consideration=20 essentially implies a failure of the basis of the transaction. Thus, if = the=20 transaction centres on the acquisition by the purchaser of the ownership = of a=20 cultural object in return for the payment of an agreed sum, the absence = of title=20 on the part of the seller amounts, in effect, to a total failure of=20 consideration and a court shall, in the absence of any recognised = defence, order=20 the return of the purchase price paid.62 The = Irish courts=20 have, however, accepted that if the parties to an agreement enter into a = contract with knowledge of the fact that doubt hangs over the seller's = title,=20 the purchaser may not secure the return of the purchase price paid.63 = Therefore, if the=20 courts are not willing to accede to the purchaser's request in those=20 circumstances, it is surely inconceivable that they would do so in the = event=20 that a purchaser knew of the absence of the seller's title, although the = seller=20 himself did not.

3.84

If, however, the possessor cannot locate the person from whom he or = she=20 acquired the object, or, indeed, if the law of the Contracting State = does not=20 admit of such a claim, Article 4(2) and (3) provide that the possessor = may=20 obtain compensation from the owner of the object in question. In = accordance with=20 the

59	As amended=20 by s.24(10) Sale of Goods Act, = 1980.

60	Law=20 Reform Commission Report on the United Nations (Vienna) = Convention=20 on Contracts for the International Sale of Goods 1980 = (LRC=20 42=961992), p.5.

61	Ibid.,=20 p.10.

62	Griffin=20 v. Caddell (1875) IR 9 CL = 488.

Ibid.

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terms of Article 4(3), an owner may then secure repayment of the = amount=20 forwarded to the possessor from =93any other person=94. Irish law does = not at=20 present place any parallel obligation upon an owner to a purchaser = (regardless=20 of the fides of the latter). An owner who chooses to pay a sum to = a good=20 faith possessor may not subsequently pursue any other party through the = courts=20 for repayment of the amount paid over, on the basis that he or she has=20 voluntarily assumed a risk not mandated by the law.64 It is = submitted=20 that it would be unfair to oblige the owner of an object, the innocent = victim of=20 a theft, to pay for the return of their own stolen object, regardless of = the=20 good faith of the party then in possession of it.

(c) Should Irish law provide for compensation of bona fide = purchasers=20 of stolen objects?

3.85

As we have seen, Irish law provides for recovery of the purchase = price by the=20 possessor from a prior transferor in certain circumstances. We will now = consider=20 whether the range of options open to a possessor should be extended to = allow=20 recovery of compensation from the original owner. It may often be the = case that=20 a possessor is unable to locate a prior transferor, in which case he or = she is=20 without a remedy. The person who acquires an object in the honest belief = that=20 the seller has the right to sell it and without any indication that the = sale is=20 not legitimate is innocent of any wrongdoing; both he and the = dispossessed owner=20 are victims whose respective interests must be protected by the law. It = could be=20 said that where the possessor is unable to recover from a prior = transferor=20 fairness demands some remedy, even if this may appear harsh on the = original=20 owner.

3.86

The Law Reform Commission recommends that compensation by = dispossessed=20 owners in respect of stolen objects should not be provided in our = law.

3.87

Firstly, the Convention aims at affording maximum protection to the=20 dispossessed owner; during deliberations on the draft Convention, those = States=20 which currently do so were urged not to change their law in this regard. = The=20 balance struck in favour of dispossessed owners by the Common Law was = clearly=20 supported by the drafters.

3.88

Secondly, it would be unacceptable to place what would amount to a = double=20 burden on the dispossessed owner by obliging him or her to pay = compensation in=20 addition to what may have amounted to significant costs in securing the = return=20 of the object.

3.89

Thirdly, to provide further protection to the possessor in addition = to the=20 ability to pursue a prior transferor would be to give undue weight to = the=20 interests of the possessor at the expense of the original owner.

64	See Webb=20 v. Ireland [1988] IR 353 on the question of the = voluntary=20 assumption of=20 risk.

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3.90

Finally, the purpose of the Convention and like instruments is to = discourage=20 illicit trade by requiring purchasers of cultural objects to enquire = into=20 provenance. The success of the Convention depends, therefore, on = significant=20 changes in the practice of those involved in transactions of this kind. = The=20 denial of compensation is of normative significance in this regard by = indicating=20 that the behaviour expected of potential purchasers is measured against = a strict=20 standard. It also serves, in a practical sense, to discourage illicit = behaviour=20 by denying purchasers a remedy which might be easier to pursue than, for = example, a claim against a prior transferor.

6. Alternative remedies available to the = possessor

3.91

The procedures to be instituted to facilitate pursuit of compensation = are=20 left to the national law of Contracting States under the terms of the=20 Convention. Article 4(2) provides that reasonable efforts shall be made = to have=20 the person from whom the possessor acquired the object, or any prior = transferor,=20 pay the compensation where this is consistent with the law of the State = in which=20 the claim is brought.

3.92

The most efficient mechanism by which to pursue compensation is by = way of=20 joinder of a prior transferor by the possessor, which has the advantage = of=20 allowing all issues in relation to the object to be resolved in the = course of a=20 single action. The Rules of Superior Courts, 1986 provide that a = defendant may=20 join a third party where he or she claims entitlement to contribution or = indemnity⁶⁵=20 (which will not be the case in relation to a claim in respect of a = cultural=20 object as there is no question of payment to the plaintiff claimant), = the=20 subject matter of the claim for a relief or remedy from the third party = is=20 substantially the same as some relief or remedy claimed by the = plaintiff,66 or

=93any question or issue relating to or connected with the said = subject=20 matter is substantially the same as some question or issue arising = between=20 the plaintiff and the defendant and should properly be determined = not only=20 as between the plaintiff and the defendant but as between the = plaintiff=20 and the defendant and the third-party or between any or either or=20 them=94.67

In a claim for return under the Convention, the subject matter of the = claim=20 is the cultural object to which the plaintiff establishes an entitlement = to=20 return. While it could be argued that the issue of a right on the part = of the=20 possessor to recover the purchase price from a prior transferor is not, = strictly=20 speaking, =93substantially the same as some question or issue arising = between the=20 plaintiff and the defendant=94,68 the = Courts have=20 repeatedly demonstrated a flexible approach to

65	Order 16,=20 Rule 1 (a), Rules of the Superior Courts,=20 1986.

66	Order 16,=20 Rule 1 (b), RSC.

67	Order 16,=20 Rule 1 (c), RSC.

68	Order 16,=20 Rule 1 (c), Rules of the Superior Courts,=20 = 1986.

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third-party procedure. In the case of International Commercial = Bank v=20 ICI,⁶⁹ for=20 sexample, Finlay CJ found that

=93[t]he modern development of procedures against third parties = in=20 respect of claims for contribution or indemnity ... indicates a = clear=20 recognition by the Courts of the requirements of justice which so=20 frequently involves the necessity as far as possible to ensure = that a=20 party against whom a claim has been made and who has legal rights = against=20 some other party which may relieve him from some or even all of = the=20 consequences of that claim should be entitled to have the issue of = his=20 liability and of his consequential rights determined in a single = set of=20 proceedings and as far as possible at the same time=94.70

3.93

In an application for joinder under the broad provisions of Order 16, = Rule 1=20 (c), the requirements of justice arising in the context of a claim under = the=20 Convention =96 particularly the interest in resolving all issues = relating to the=20 object in question in the same action =96 clearly favours the granting = of leave to=20 join. This would save court time and avoid the additional expense to the = possessor which would result if a separate action were required.

We are of the view that implementing legislation should make clear = that where=20 a claim for return is brought under the Convention, possessors may = invoke Order=20 16; this is not to limit the discretion afforded to the judiciary to = refuse=20 joinder in cases where it would be inappropriate, but merely to clarify = that=20 existing procedures may appropriately be adapted to the particular = demands of=20 the Convention.

3.94

In summary, Irish law entitles the bona fide possessor to = obtain=20 contractual or restitutionary damages from the party from whom he = acquired the=20 cultural object in question but does not extend the obligation to pay to = the=20 owner thereof. The Commission is of the view that no further provision = should be=20 made in this regard: those avenues, outlined above, which are currently = open to=20 the possessor, together with the availability of third-party procedures = which=20 facilitate pursuit of the transferor, provide sufficient latitude to the = possessor to recover compensation in appropriate cases.

B. THE RETURN OF ILLEGALLY EXPORTED CULTURAL OBJECTS

1. Article 5: A conditional right to return

3.95

While the principal problem arising in relation to the theft of = cultural=20 objects was the question of the bona fide purchaser, the = principal=20 difficulty in respect of illegally exported cultural objects was the = matter of=20 the recognition by

69	[1989] ILRM=20 788. See also, Quirke v. O Shea [1992] ILRM 286 at=20 290=961.

70	[1989] ILRM=20 788 at = 799=96800.

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States of foreign public laws, of which foreign export laws are a = clear=20 example.

3.96

Here we encounter the commonly accepted rule of non-recognition and=20 non-enforcement of such laws. The International Law Association has = monitored a=20 tentative movement away from that approach in recent years and its = replacement,=20 in a limited number of situations, by a willingness to so recognise. It = is=20 nonetheless premature to claim that the recognition of foreign public = laws has=20 crystallized into a norm of public international law. It remains the = exception=20 rather than the norm.

3.97

To this list of exceptions may now be added the Unidroit Convention, = which=20 imposes a conditional obligation upon Contracting States in which = illegally=20 exported cultural objects are located, to return them to the Contracting = States=20 from which they were removed, upon the request of that State. The duty = to return=20 is a conditional one in the sense that it applies only to those objects = whose=20 removal from the requesting State significantly impairs one of a = specified=20 number of cultural interests71 or is = otherwise=20 shown to be of =93significant cultural interest=94.72 As we = have seen,=20 the regime introduced by Chapter III differs from its counterpart in = respect of=20 stolen cultural objects which envisages automatic return from possessor = to=20 dispossessed party.

3.98

Article 5 provides that a Contracting State shall, at the request of = another=20 Contracting State whose protective control regulations have been = violated,=20 return the illegally exported cultural object if its removal = significantly=20 impairs, inter alia, =93the physical preservation of the object = or its=20 context=94. The Convention is here concerned with those situations in = which=20 physical damage is sustained by monuments and archaeological sites as a = result,=20 for example, of illegal excavations and pillage, as well as physical = damage to=20 delicate objects because of careless handling by looters, smugglers, = dealers and=20 other parties implicated in the illegal export.

3.99

A cultural object shall also be returned to the Contracting State = from which=20 it was illegally exported if its absence therefrom significantly impairs = =93the=20 preservation of information of, for example, a scientific or historical=20 character=94. The reference to the =93preservation of information=94 = reflects a=20 concern not only for the culture of the requesting State but of that of = humanity=20 as a whole. In order for humanity as a whole to benefit from such = objects,=20 however, they must be placed in their proper context. If displaced, the = pool of=20 information surrounding the objects and the importance of the collection = of=20 which they were a part, are diminished.

71	These=20 interests are alternative rather than=20 cumulative.

Article=20 5(3) asserts that the requesting State shall = establish that=20 the removal of the object has the requisite significant = effect. The=20 use of the word =93establish=94 instead of =93prove=94 in = this regard is=20 significant: it is indicative of the compromise which = Article 5=20 represents between two groups of States =96 those which = wished to=20 limit the removal of cultural objects from their territory = and=20 equally advocated the automatic return of objects so removed = and on=20 the other hand, those which favoured a more liberal approach = to the=20 international movement of such objects. The latter group = advocated=20 the use of the word =93prove=94 in order to indicate clearly = the burden=20 placed on the requesting=20 state.

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3.100

An object shall likewise be returned if the requesting State = establishes that=20 its removal significantly impairs its traditional use by a tribal or = indigenous=20 community. We have previously given consideration to these terms.73

3.101

The conditional obligation in Article 5 to return illegally exported = cultural=20 objects shall not, pursuant to Article 7(1)a, apply when the export of a = cultural object is no longer illegal at the time at which the request = for return=20 was made. It is conceded that there is little merit in calling upon a = court or=20 competent authority of another State to implement an export policy which = is at=20 that time deemed too restrictive by the requesting State itself.

3.102

Article 7(1)b refers to another situation in which the principle of = return=20 established in Article 5 shall not apply. By asserting that the = provisions for=20 return shall be inapplicable in respect of objects exported during the = lifetime=20 of the person who created it or within a period of fifty years after his = or her=20 death, the sub-paragraph represents an attempt to ensure that the = operation of=20 the Convention does not interfere with the ability of artists to obtain = foreign=20 exposure for their work, to make themselves known to a wider audience, = or to=20 provide for their families after their death. Thus, although a State may = impose=20 restrictions under its domestic law upon the export of the work of such = artists,=20 those restrictions will not be given effect under the Convention. This = provision=20 reflects the philosophy of the 1980 UNESCO Recommendation on the = Condition of=20 Artists, as well as the national legislation of many States on the=20 protection of cultural objects which excludes the work of living artists = from=20 their scope of application. The framers of the Convention did, however, = feel the=20 need to make one inroad into this exception. This is embodied in Article = 7(2)=20 which states that notwithstanding Article 7(1)b, the regime for the = return of=20 illegally exported objects shall apply to those objects made by one or = more=20 members of a tribal or indigenous community where such objects were = designed for=20 traditional or ritual use by that community.

3.103

The dangers inherent in using a listing technique as a means of = definition=20 are well documented; it is virtually impossible to foresee, and thus = list, all=20 possible permutations which will warrant legal protection. The standard = device=20 used to remedy this situation is the inclusion of a general catch-all = phrase=20 under which those objects which do not fall into any of the specified = categories=20 may be included. Chapter III of the Unidroit Convention adheres to this = method=20 of drafting by introducing the fact that removal of the object =93is of=20 significant cultural importance for the requesting State=9474 as an = alternative=20 criterion for the return of the object.

3.104

Article 5(2) adds that, for the purposes of this Convention, an = object which=20 has been temporarily removed from the territory of a requesting State = for=20 exhibition, research or restoration purposes pursuant to a permit issued = for=20 that purpose and not returned in accordance with the terms of that = permit shall=20 be

73	See para.=20 3.41.

74	Unidroit=20 Convention, Article=20 5(3).

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deemed to have been illegally exported. In these as in all other=20 circumstances, requests for return shall be accompanied by such = information of a=20 factual or legal nature as may be of assistance to the court or other = competent=20 authority seised of the issue.

3.105

Finally, Article 5(5) sets out the applicable limitation periods for = claims=20 for the return of illegally exported cultural objects. The period = established=20 therein is the same as the basic period established in Article 3(3) in = respect=20 of stolen cultural goods. Thus, a request shall be brought within a = period of=20 three years from the date on which the requesting State knew both the = location=20 of the object and the identity of the possessor. A ceiling of fifty = years from=20 the date of illegal export is imposed. Unlike its counterpart in respect = of=20 stolen cultural objects, there is no extraordinary limitation period for = those=20 objects which form an integral part of an identified monument or an=20 archaeological site, or belong to a public collection. The absence of = such a=20 regime is due, of course, to the fact that the return procedure set out = in=20 Chapter III only applies, in the first instance, to objects of some = importance,=20 as recognised in Article 5(3).

2. Compensation for the return of illegally exported=20 objects

3.106

Article 6 establishes a compensation regime for the bona fide=20 purchaser of illegally exported objects.75 The = regime=20 differs in a number of important respects from that which is set out in = Chapter=20 II in respect of stolen cultural objects. It states that the possessor = shall be=20 entitled to fair and reasonable compensation provided that he or she = neither=20 knew nor ought to have known at the time of acquisition that the object = was an=20 illegal export. Unlike Article 4, there is no reference to the = possessor's=20 obligation to prove that he or she exercised due diligence in the course = of the=20 transaction in question. Indeed the Convention is silent on the matter = of the=20 party on whom the burden of proof shall fall in these circumstances. = This matter=20 is in effect left to national law. The Convention's silence on this = point=20 reflects a feeling on the part of many States that =93the stigma = attaching to=20 theft ought not to be transposed to illegally exported cultural = objects=94.76

3.107

While the standard imposed is somewhat less onerous than that imposed = in=20 Chapter II, it does not necessarily follow that it is easy for the = possessor of=20 illegally exported cultural objects to obtain compensation. The = requirement that=20 he or she neither knew nor ought reasonably to have known represents a=20 substantial obstacle to compensation. This is especially true in the = light of=20 the publication by UNESCO in 1984 of the export control laws of over 140 = countries.⁷⁷=20 The court or other competent authority to whom the task of determining = whether=20 the possessor had actual or constructive knowledge of the

75	Article=20 7(b)(ii) is its equivalent in the UNESCO Convention on = the Means=20 of Prohibiting and Preventing the Illicit Import, Export and = Transfer of Ownership of Cultural Property,=20 1970.

76	Unidroit=20 Explanatory Report in Acts and Proceedings of the = Diplomatic=20 Conference, p.39, para. = 108.

77	Irish=20 export laws were among those included in UNESCO's=20 = review.

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illicit provenance of the object shall, according to Article 6(2), = have=20 regard to the circumstances of the acquisition, including the absence of = an=20 export certificate required under the law of the requesting State. That = absence=20 of an export certificate required by the national law of the requesting = State=20 may prove fatal to the possessor's claim to compensation is particularly = significant for Ireland given the broad range of objects so requiring = under the=20 National Cultural Institutions Act, 1997 which also attract the=20 protection of the Convention.

3.108

If the court or other organ dealing with the issue concludes that=20 compensation shall be paid to the possessor, it shall be a fair and = reasonable=20 sum; the use of this approach rather than one in which the market price = was used=20 to measure compensation is, according to the UNIDROIT Secretariat:

=93justified by the extremely high prices which works of art = presently=20 command, the limited financial possibilities of many States to pay = compensation and the need to discourage speculation.=9478

3.109

The Secretariat adds that all of the above factors, plus the = commercial value=20 of the object in the State of origin and in the State which seeks its = return and=20 any other relevant circumstances which would assist the court or other = competent=20 authority may be considered in determining the amount of compensation = payable in=20 each individual case.

3.110

Article 6(2) states that the requesting State shall pay the = compensation=20 owing, and Article 6(4) adds that it shall also meet all costs which = accrue in=20 securing the return of the object. Nonetheless, it does not preclude = action by=20 those States to secure the repayment of monies which they have paid in = order to=20 facilitate an object's return.

(a) Should Irish law provide for compensation of bona fide = purchasers=20 of illegally exported cultural objects?

3.111

At present, the question of removing an illegally exported cultural = object=20 from a possessor and the attendant issue of payment of compensation to = that=20 possessor does not arise: the non-enforcement of foreign public laws = protects=20 the possessor in such circumstances. If, however, the Convention were = adopted, a=20 bona fide possessor might, in the appropriate circumstances, = avail of=20 section 12(2) of the Sale of Goods Act, 1893 in order to secure = damages=20 from the other party to the contract to purchase the illegally exported = cultural=20 object. Section 12(2) states that it shall be an implied condition of a = contract=20 for sale that the buyer shall have quiet possession, a condition which = is=20 obviously breached when the object is returned under the Convention. It = is=20 submitted that the damages would only be awarded under Section 12(2) if = the=20 possessor purchased in good faith. Likewise, if the contract is an = international=20 one, as defined in section 61 (1) of

78	Unidroit=20 Explanatory Report in Acts and Proceedings of the = Diplomatic=20 Conference, p.39, para.=20 107.

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the Sale of Goods and Supply of Services Act, 1980, the = parties may=20 choose to circumvent the terms of Section 12(2), thereby removing the = bona=20 fide purchaser's ability to claim damages thereunder. The Convention = does=20 not, however, refer to the fact that the State engaged in such a request = for=20 return may retrieve these sums from the party or parties responsible for = the=20 illegal export.

3.112

The considerations to be assessed in relation to compensation of a = possessor=20 of an illegally exported object are considerably different from those in = respect=20 of stolen objects, title to which is tainted from the outset by reason = of the=20 theft. Firstly, illegal export per se does not prevent title from = passing. It has implications for the illegal exporter in that he or she = may be=20 fined or imprisoned under the National Cultural Institutions Act, = 1997.=20 His or her title in the object may also be adversely affected: where = such person=20 is found guilty of an offence in relation to export of an object which = is either=20 a registered cultural object which prior to the conviction had been in = the=20 control of a public institution or is an archaeological object, that = object may=20 be forfeited to the State. The owner or any person claiming to have an = interest=20 in the object may apply to the Court to be heard on the issue of why = forfeiture=20 should not be ordered.79 Thus, a = person=20 who purchased the object from the illegal exporter or a subsequent owner = may=20 argue against forfeiture on the grounds that the object was purchased in = good=20 faith and without knowledge of the illegal export. Clearly, if the = object is=20 registered, such an assertion would be unlikely to succeed as failure to = consult=20 with the register would show a lack of due diligence; it may not be as = difficult=20 to show the requisite diligence where unregistered archaeological = objects are=20 concerned.

3.113

Where the object is still owned by the person convicted of the = attempt to=20 illegally export it, no issue arises as to compensation. It is possible, = however, that the order for forfeiture may affect a subsequent = purchaser, who=20 has title in the object at the time that conviction of the illegal = exporter is=20 secured. Similarly, situations may arise where the exporter and the = purchaser=20 both have an interest in the object at the time of the conviction, for = example=20 where a portion of the purchase money has been paid. The question then = arises as=20 to what avenues of redress are open to the bona fide purchaser. = He or she=20 may recover the purchase money from the exporter on the basis, for = example, of a=20 breach of the implied covenant to quiet possession. Under the = Convention, such a=20 person would be entitled to compensation by the State requesting return, = it then=20 being a matter for the State to recover such monies from any other = person. The=20 Convention, therefore, envisages more favourable treatment of the = purchaser than=20 does domestic law in this regard.

3.114

We are of the view that compensation should be payable by the State=20 requesting return of illegally exported cultural objects in = circumstances where=20 the purchaser acted in good faith. This is already available in our law = under=20 the European Communities (Return of Cultural Objects) Regulations = 1994=20 (hereinafter

79	National=20 Cultural Institutions Act, 1997 section=20 = 49(10).

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the =931994 implementing Regulations=94); a similar provision should = be enacted=20 in respect of the Convention. It is possible, in our view, to = distinguish=20 between the case of illegal export and that of theft. Firstly, there is = a=20 difference in terms of legal principle: title does not pass in the case = of theft=20 (although, as we have seen, there are a number of exceptions to this = rule),80 while = this is not=20 the case in relation to illegal export. Secondly, there is the issue of = balance=20 between the interests of the respective parties; the owner of a stolen = object=20 should not be further burdened by a duty to pay compensation, while in = the case=20 of illegal export it is the State and not a private party which pursues = the=20 claim for return. While the State may have been deprived of the = enjoyment of the=20 object and burdened by the need to pursue its return, this is not, in = our view,=20 enough to justify State interference with the property rights of a = person who=20 did not know, and could not have know, that the object was illegally=20 exported.

3.115

The State should, however, be facilitated in pursuing the illegal = exporter=20 under domestic law for recovery of the sums paid. This avenue is not = currently=20 available to the State either under the existing law of contract, in = contrast=20 with the position in regard to stolen objects, nor would it be possible = in all=20 cases to effectively reimburse the State under the National Cultural=20 Institutions Act, 1997, given that the maximum fine for illegal = export is=20 =A350,000. Such penalty may not be sufficient to reimburse the State in = a case=20 involving a particularly valuable object.

3.116

Where the claim is in respect of an object which was in private hands = prior=20 to the illegal export, it will either have been stolen from the owner so = that=20 Chapter II of the Convention applies (with the option to pursue damages = open to=20 the possessor), or the original owner is in some way implicated in the = illegal=20 export, in which case the State may order forfeiture under the 1997 Act. = Alternatively, a situation may arise where an object which is on = temporary loan=20 abroad is not returned in accordance with the terms of the export = licence;=20 Article 5(2) provides that such object shall be deemed to have been = illegally=20 exported.

3.117

The 1994 implementing Regulations provide for payment of compensation = where=20 the Court is satisfied that the possessor exercised due care and = attention in=20 acquiring the object. We recommend the introduction of a provision = similar to=20 that Regulation, requiring the Court hearing the claim for return to = order=20 payment by the requesting State of such compensation as it deems =93fair = and=20 reasonable=94 in all the circumstances of the case and provided that the = possessor=20 neither knew nor ought reasonably to have known at the time of the = acquisition=20 of the object that it had been illegally exported. The Court should = not be=20 bound by the levels of damages afforded in actions in contract, but = rather=20 should take into consideration factors such as those laid down in = Article 4(4):=20 the price paid, the character of the transferor and failure by the = transferee to=20 take steps which any reasonable person would have taken in acquiring an = object=20 in similar circumstances.

80	See paras.=20 3.62 and = 6.34.

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(b) Burden and standard of proof

3.118

The Convention leaves the question of the burden and standard of = proof=20 largely to domestic law. While it is specific as to where the burden = lies in=20 certain instances, it is silent on the standard of proof to be applied. = The=20 issue arises in two related areas, that of the determination of a claim = for=20 return of an object and, depending on the outcome of such a claim, that = of=20 entitlement to compensation.

3.119

Two questions arise for consideration. Firstly, on whom should the = burden=20 rest and secondly, what standard of proof should be required in order to = satisfy=20 that burden.

3.120

The question of the party on whom the burden lies must be = distinguished from=20 that of the standard of proof, which refers to the size of the legal = burden of=20 proof. In civil cases, the standard is proof =93on the balance of = probabilities=94,=20 although this is not always applied rigidly. In cases where the = repercussions=20 are particularly serious or far-reaching the standard may be = augmented.81

3.121

In civil cases generally, the burden of proof is said to rest on = =93he who=20 affirms rather than he who denies=94, although, as Fennell points out, = this is an=20 uncertain guide. By contrast, in a criminal case the burden rests with = the=20 prosecution to prove each element of its case. Where a claim is brought = for the=20 return of an illegally exported object, the court in the requested State = is=20 obliged to order return where one or more of the interests described in = Article=20 5(3) are established as having been significantly impaired. The burden = of so=20 establishing is placed on the requesting State by Article 5(3).

3.122

Following a successful claim by a State, the question arises whether = it is=20 for the State to prove that the possessor is not entitled to = compensation, or=20 for that person to prove that he or she is so entitled. Applying the = common law=20 principle that the burden lies on the party who would be unsuccessful in = the=20 case if no evidence at all were proffered, it is for the possessor to = establish=20 his or her right to compensation. There seems no reason to deviate from = this for=20 the purposes of the Convention, particularly in light of the favour = extended to=20 dispossessed owners elsewhere in the Convention.

3.123

Where a claim is brought under Chapter II, the claimant will be = required to=20 prove a taking and carrying away of something capable of being stolen = without=20 the owner's consent. It will then be for the possessor to prove any = defences,=20 such as a superior right to possession as against the claimant. It is = arguable=20 that where the =93penalty=94 is forfeiture of what may be a very = valuable object, a=20 higher standard than that of proof on the balance of probabilities = should be=20 imposed on the claimant in order to establish an entitlement to return. = We=20 are of the opinion that, in the interest of promoting maximum return, = the civil=20 standard =96 proof on the

81	See=20 Fennell, C, The Law of Evidence in Ireland = (Butterworths,=20 1992), = p.49.

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balance of probabilities =96 should apply. We therefore recommend = that in=20 the interests of clarity a provision to that effect should be included = in=20 implementing legislation.

3.124

In relation to claims for compensation for return of stolen objects, = the=20 Convention places the onus of proving due diligence on the possessor of = such an=20 object. In the case of illegally exported objects, however, the = Convention is=20 silent on where the burden lies, so that the matter is left to the law = of the=20 State in which the claim is made. Under our law it would be for the = possessor=20 claiming compensation to establish that he or she did not know or should = not=20 have known of the theft or illegal export.

3.125

We recommend that implementing legislation should include a = provision=20 explicitly requiring the possessor in all cases to establish his or her=20 entitlement to compensation rather than leaving the issue open, as is = the case=20 in the 1994 implementing Regulations, or relying on common law=20 principles.

3.126

We have also considered whether implementing legislation should go so = far as=20 to require the possessor to prove due diligence in respect of = acquisition of an=20 illegally exported object. It may be argued that given the international = trend=20 towards restricting and monitoring exports, and the accessibility of = national=20 legislation, this would be an acceptable burden. On the other hand, = these=20 factors are of a kind which should be taken into account as a matter of = course=20 by courts when assessing actual or constructive knowledge on the part of = the=20 possessor. Given that our law places the burden of showing a lack of the = requisite knowledge on the possessor, he or she will be required to give = evidence of inquiry into provenance. In countries which, unlike Ireland, = extend=20 greater protection to the possessor than to the dispossessed owner, = latitude is=20 afforded by the Convention to place the burden on the claimant to = establish a=20 case against compensation rather than on the possessor to establish his = or her=20 entitlement thereto. The effect of Irish rules of evidence is, however, = to place=20 a burden akin to a showing of diligence on the possessor, making it = somewhat=20 unnecessary to introduce further legislation to that effect.

3.127

The committee of experts also decided against inclusion of an = irrebutable=20 presumtion of bad faith in the absence of an export certificate. They = reasoned=20 that to include such a provision would be to assume the possessor's = knowledge of=20 the export legislation of every country and to render almost impossible = the=20 acquisition in good faith of any cultural object.82 The = absence of=20 such a certificate may, however, be taken into account by the court in = assessing=20 whether the possessor knew or ought reasonably to have known that the = object had=20 been illegally exported.

3.128

The fact that no such negative presumption was provided in the = Convention=20 does not prevent national law from so providing. Having considered = whether Irish=20 law should deviate from the Convention in this regard, the

82	Unidroit=20 Explanatory Report, in Acts and Proceedings of the = Diplomatic=20 Conference, p.39, para.=20 109.

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reasoning of the committee of experts referred to above is, in our = view,=20 persuasive. By the same token, the existence of an export = certificate=20 should not be dispositive either; forgery of export documents occurs on = a large=20 scale worldwide and is often of a very high quality. The better course = seems to=20 us to be to allow judges to have regard to all the relevant = circumstances=20 attending acquisition of an object and to reach a decision based on a=20 consideration of all of the facts.

GENERAL PROVISIONS

1. Article 8: Jurisdictional Matters

3.129

Article 8 deals with a number of pertinent jurisdictional issues. = Article=20 8(1) lays down a uniform rule regarding jurisdiction to hear claims for = the=20 restitution and return of stolen and illegally exported cultural = objects. It=20 establishes that such claims may now be conducted in the jurisdiction in = which=20 the object is located. This jurisdiction is in addition to those already = found=20 in Contracting States. The decision to grant this jurisdiction to courts = so=20 located in respect of claims for the restitution or return of stolen or=20 illegally exported cultural objects represents a welcome advance upon = the=20 position pertaining to date. Such a claim is now much more likely to = achieve a=20 successful conclusion if brought before the court of a place where the = object is=20 located since problems of enforcement of a foreign judgment ordering = return=20 shall not arise.

3.130

Article 8(2) permits Contracting States to agree to submit disputes = to a=20 jurisdiction of their choice or to arbitration. It has been noted = that:

=93the choice of forum, which is widely recognised in private=20 international law, is an essential procedural freedom and that the = omission of a provision to that effect could create an obstacle = for=20 certain States to ratify the ... Convention.=9483

3.131

Arbitration has a number of attractive features for the parties to = those=20 claims envisaged under the Convention. One distinct advantage is the=20 confidentiality which surrounds such procedures. Its chief merit, = however,=20 appears like the new jurisdictional basis set out in Article 8(1), to = lie in its=20 promotion of the enforcement of decisions regarding restitution or = return. It is=20 envisaged that enforcement problems would be reduced to the extent that = the=20 institution of arbitral proceedings is dependent upon the consent of = both=20 parties.

3.132

Finally, Article 8(3) states that:

=93resort may be had to the provisional, including protective, = measures=20 available under the law of the Contracting State where the object=20 is

83	Unidroit=20 Explanatory Report in Acts and Proceedings of the = Diplomatic=20 Conference, p.41, para.=20 120.

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located even when the claim for restitution or request for = return of=20 the object is brought before the courts or other competent = authorities of=20 another Contracting State.=9484

3.133

If, for example, the claimant chooses to institute proceedings before = a court=20 in the State in which the defendant is domiciled, he or she may also = apply to=20 the courts of the Contracting State in which the object is located in = order to=20 avail of an appropriate provisional or protective measure, such as an = injunction=20 to prevent the sale, export or any further dealing in the object in=20 question.

3.134

As we have seen,85 Article = 9 allows=20 Contracting States to rely on alternative rules to those provided in the = Convention where to do so would be more favourable to restitution or = return. It=20 should, however, be noted that Article 9 does not oblige the = Contracting=20 States whose rules are more protective of cultural objects to apply = those in=20 preference to the terms of the Convention; the matter remains at the = discretion=20 of the individual Contracting States. It is clear, however, that the = adoption of=20 the higher standard where feasible would be more consistent with the = protective=20 spirit of the Convention.

3.135

A claimant from a Contracting State which chooses to apply its own = more=20 favourable rules to the claims brought before its courts cannot expect = similar=20 latitude when he or she pursues a claim in another Contracting State. = This is=20 made clear by Article 9(2) which provides that the preceding = paragraph:

=93shall not be interpreted as creating an obligation to = recognise or=20 enforce a decision of a court or other competent authority of = another=20 Contracting State that departs from the provisions of this=20 Convention.=94

3.136

There may, however, be occasions on which a claimant from a = Contracting State=20 can benefit from the more generous provisions of that State's laws. If = the law=20 to be applied is the law of that State, as for instance if the object in = question was located in that State, or a relevant transaction affecting = the=20 object was governed by the laws of that State, then that law, even = though more=20 favourable to the claimant than the Convention, can be invoked.

2. Non-retroactive Nature of The Convention

3.137

Although the principle of non-retroactivity of treaties has the force = of=20 customary international law and is set out in the Vienna Convention = on the=20 Law of Treaties, 196986 (which = Ireland=20 has not yet ratified), the drafters of the Convention concluded that it = was=20 advisable to make specific reference to this point to avoid any contrary = interpretations by some Contracting States. This

This=20 provision is designed to promote international co-operation = by=20 taking over the formula to be found in Article 24 of the = Brussels=20 Convention concerning protective, including provisional, = measures=20 available under the law of the Contracting State where the = object is=20 located, when a claim is brought in another=20 jurisdiction.

85	The=20 interplay between Articles 9 and 4 is considered = supra at=20 para. 3.68 et seq.

86	Article=20 = 28.

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issue proved to be one of the most controversial and sensitive in the = drafting history of the Convention. Opposition to retroactivity came = largely=20 from developed States, whose representatives felt that granting = retroactive=20 status to the Convention would have extensive political repercussions = and cause=20 insurmountable legal problems87 and = stated that=20 they could not partake in any Convention in which this principle = applied. On the=20 other hand, many States felt that because their most important cultural = objects=20 had already been taken from them in circumstances in which they had no=20 opportunity to resist, it would be politically impossible for them to = accept any=20 wording which implied the recognition or legitimation of such prior = transfers.=20 The inclusion of such a provision in the Convention could likewise deter = those=20 States from adopting the Convention. Ultimately, however, the preference = of the=20 former group prevailed.

3.138

Thus, Article 10 establishes that the Convention shall not have = retroactive=20 effect. As far as Chapter II is concerned, the regime established = thereunder=20 shall be operative only in respect of those cultural objects stolen = after the=20 Convention entered into force in the State in which the claim for = restitution is=20 brought, and,

(a)	the object was stolen from the territory of a Contracting = State=20 following the entry into force therein of the Convention;=20 or

(b)	the object is located in a Contracting State following = the entry=20 into force of the Convention=20 therein.

3.139

In submissions to the Law Reform Commission following publication of = our=20 Consultation Paper, concern was expressed that the wording of section = 10(1)b was=20 ambiguous and, despite the non-retroactive nature of the terms of the=20 Convention, needed to be clarified. We had commented in our Consultation = Paper=20 that a literal interpretation of the paragraph might suggest that the = Convention=20 could be invoked where an object was introduced into the Contracting = State=20 before the entry into force of the Convention, as long as it was still = located=20 there at the date of entry into force. We are now of the view that this=20 interpretation is only possible if sub-paragraph b and paragraph (1) are = read=20 disjunctively.

3.140

Consider the result of a claim in the following circumstances: = Ireland=20 accedes to the Convention on December 1, 1997, Britain on September 1, = 1997. A=20 cultural object is stolen from an individual in Ireland in November 1997 = and=20 surfaces in Britain some time later.

3.141

A claimant may invoke the Convention in these circumstances = notwithstanding=20 the fact that it was not in force in Ireland at the time of the theft, = but only=20 if he or she proceeds before a British court since the object was

For some,=20 including Ireland, it could create significant = constitutional=20 problems, interfering with guarantees of property rights or = with=20 general principles of non-retroactivity of legislation. For = others,=20 it was contrary to the fundamental provisions of the civil = law from=20 which they were unwilling to=20 = depart.

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stolen after the coming into force of the Convention in Britain.88 Such a = proceeding=20 could not be brought before an Irish court because the object was stolen = before=20 the coming into effect of the Convention in this jurisdiction. The = effect of=20 Article 10(1) standing alone is that our claimant may proceed only if = the object=20 was either stolen from a Contracting State after the Convention came = into force=20 in that State, (which in the above case it was not) or is located in a=20 Contracting State after the Convention came into force in that State (as = in the=20 above case). The effect of sub-paragraph b in conjunction with paragraph = (1) is=20 that the fact that a stolen cultural object is located in a Contracting = State=20 after the coming into effect of the Convention in that State does not in = itself=20 allow a potential claimant to avail of the Convention: the object must = also have=20 been stolen after the date on which the Convention came into effect in = the State=20 in which the claim is sought to be brought.

3.142

Unlike Article 10(3) which applies to illegal export, Article 10(1) = does not=20 require that the Convention must have entered into force in the State = where the=20 theft occurred, but only that it has done so in the State where the = claim is=20 brought. That the Convention has not entered into force at the time of = the theft=20 in the State in which the theft occurred is not, therefore, an obstacle = to the=20 claimant in availing of the Convention, but merely limits his or her = choice of=20 forum.

3.143

Given that the Convention has not yet come into force in any State = and that=20 any proceeding brought under the Convention must involve an object = stolen after=20 the coming into effect of the Convention, the Convention will only = affect claims=20 arising out of thefts at some date in the future.

3.144

Where illegally exported cultural objects are concerned, the = Convention shall=20 apply in respect of those objects which are both removed from the = requesting=20 State in which the Convention is in force at the time of removal and = introduced=20 into a Contracting State in which the Convention is likewise in = force.

3.145

Article 10(3), however, makes clear that this assertion of = non-retroactivity=20 does not in any way legitimise any illegal transaction which is excluded = by the=20 inclusion of Article 10(3) in the Convention. Thus, although the = Convention=20 recognised the moral force of the arguments on behalf of a retroactive=20 application, it declines to give them legal force. It does, however, = assert that=20 States or other interested parties remain free to pursue actions for = restitution=20 or return by use of mechanisms outside the ambit of the Convention. In = this=20 regard, it should be noted that none of the other Conventions which deal = with=20 cultural protection provide for retroactive effect.

3.146

One final point worth noting is that the effect of Article 9 on the = issue of=20 non-retroactivity is to allow individual Contracting States to provide = for=20 retroactivity in their domestic law. This does not, however, impose any=20 obligation

88	=93The=20 provisions of Chapter II shall apply only in respect of a = cultural=20 object that is stolen after this Convention enters into = force in=20 respect of the State where the claim is brought=94: Article=20 = 10(1).

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on other States to enforce judgments made pursuant to retroactive = application=20 of the Convention. Given that many objects currently in public and = private hands=20 world-wide are of dubious provenance, it is unlikely that many States = will=20 invoke this power, although there is a possibility that those States = which have=20 suffered the greatest losses and which have not benefitted in any way = from=20 illicit trade may choose to do so.

3.147

Consultation with various experts in the field illustrated that there = is=20 considerable resistance to retroactivity. We therefore see no reason to = deviate=20 from the principle of non-retroactivity laid down in the Convention.

FINAL PROVISIONS

1. Entry Into Force

3.148

Matters relating to the entry into force of the Convention are set = out in=20 Articles 11 and 12. The Convention was opened for signature at the = concluding=20 meeting of the Diplomatic Conference which met in order to adopt the = draft=20 Convention, which took place on June 24, 1995 and remained open for = signature by=20 those States represented at the Diplomatic Conference =96 negotiating = States=20 =96until June 30, 1996.89 Having = signed the=20 Convention, a State may then proceed to ratify, accept or approve it. = All=20 non-signatory States may accede to the Convention. This option has been = open to=20 them since June 24, 1995. Those who wish to ratify, accept, approve or = accede to=20 the Convention must deposit a formal instrument to that effect with the = Italian=20 Government, which will act as depositary for the purposes of the = Convention.

3.149

The Convention shall enter into force on the first day of the sixth = month=20 after the deposit of the fifth instrument of ratification, acceptance, = approval=20 or accession. The Convention shall thereafter enter into force in an = individual=20 State on the first day of the sixth month following deposit of its = instrument of=20 ratification, acceptance, approval or accession.

2. Relationship With Other International = Agreements

3.150

It is customary for international private law conventions to contain = a=20 provision safeguarding existing agreements dealing with the same or = similar=20 subject-matter. Adhering to this custom, the Convention states in = Article 13(1)=20 that it shall not affect any international instrument by which any = Contracting=20 State is legally bound which contains provisions on matters governed by = the

A = total of=20 22 States, of which Ireland is not one, have signed the = Convention:=20 Burkina Faso, Cambodia, Cote d'Ivoire, Croatia, France, = Guinea,=20 Hungary, Italy, Lithuania, Zambia, Georgia, Finland, = Portugal,=20 Paraguay, Switzerland, Romania, Pakistan, Netherlands, Peru, = Bolivia, Senegal, Russian Federation. Lithuania and Paraguay = have=20 since ratified the Convention; China has acceded with=20 = declarations.

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Convention, unless a contrary declaration is made by those States. It = would=20 appear that the guarantee not to affect those legally binding = instruments to=20 which at least one Contracting State is a party applies only to those=20 international instruments already concluded and binding.

3.151

Article 13(2) endorses the entry by Contracting States into bilateral = or=20 multilateral agreements with other States with a view to improving the=20 application of the Convention inter se. Copies of such agreements = shall=20 be transmitted by the States involved to the Italian Government in its = capacity=20 as depositary.

3.152

Article 13(3) was drafted with the special position of the Member = States of=20 the European Union in mind. It asserts that:

=93In their relations with each other, Contracting States which = are=20 Members of organisations of economic integration or regional = bodies may=20 declare that they will apply the internal rules of these = organisations or=20 bodies and will not therefore apply as between these States the = provisions=20 of this Convention the scope of application of which coincides = with that=20 of those rules.=94

3.153

The Member States of the European Community are obliged to apply = Community=20 rules in preference to other rules, national or international. Thus, = Member=20 States are obliged to avail of the regime for the return of illegally = exported=20 cultural objects set out in Directive 93/7 in those situations in = which=20 the object is, after its illicit removal, located in another Member = State. On=20 the other hand, the provisions of Chapter III shall be operative both = where a=20 Member State seeks the return from a non-Member State of a cultural = object=20 illegally removed from its own territory, and where an object falls = outside the=20 scope of Directive 93/7 but inside the definition of objects protected = under the=20 Convention. That a claimant who fails to satisfy the criteria in the = Directive=20 may seek the protection of the Convention is apparent from the wording = of=20 Article 13(3) which provides that members of regional bodies may apply = their own=20 internal rules rather than those provisions of the Convention the scope = of which=20 =93coincides with that of those rules=94. The application of Chapter II = of the=20 Convention is, of course, unaffected by the Directive, which applies = only to=20 illegally exported objects.

3. Declarations

3.154

Article 14(1) deals with a specific declaration which may be = deposited by=20 Contracting States with the Italian Government at the time of = ratification,=20 acceptance, approval or accession. This provision is of interest to = those=20 Contracting States which have more than one territorial unit. It = provides that=20 in such circumstances, and notwithstanding the different systems of law=20 applicable in the various territorial units, a Contracting State may at = the time=20 of ratification or other method of adoption, declare those territories = to which=20 the Convention

THIS IS AN ORIGINAL=20 PAGE-BREAK: PAGE = NUMBER=3D59=20

shall apply.90 In the = event that=20 a Contracting State fails to issue a declaration in accordance with = Article=20 4(1), the Convention shall be deemed to apply to all of its territorial = units.=20 Article 14(3) provides that, in the event that a Contracting State = issues a=20 declaration to the effect that the Convention shall apply in one or = more, but=20 not in all of its territorial units, the term =93Contracting State=94 = where utilised=20 in the Convention shall be taken to read =93territorial unit=94. Thus, = when the=20 Convention refers, for example, to the =93court or competent authority = of a=20 Contracting State=94, it shall be read in the above situation to mean = the court or=20 competent authority of a territorial unit.

3.155

Article 15 details the procedures to which Contracting States must = adhere=20 when issuing declarations under the Convention and some of the = consequences of=20 such declarations. There are four provisions =96 Article 3(5), Article = 13 (1) and=20 (3) and Article 14(1) above =96 which enable Contracting States to enter = declarations to the terms of the Convention. In addition, Article 16 = provides=20 that Contracting States shall, at the time of signature, ratification,=20 acceptance, approval or accession, declare those bodies to which = authority to=20 hear the claims under the Convention shall be granted. In relation to = all of the=20 above, Article 15 establishes that declarations made at the time of = signature=20 shall be confirmed upon ratification, acceptance or approval. = Declarations and=20 confirmations of same shall be made in writing and deposited with the = Italian=20 government. They shall take effect upon the entry into force of the = Convention=20 in the individual Contracting State concerned. Those declarations, = however, in=20 respect of which the depositary receives notification after the entry = into force=20 of the Convention in the State concerned, shall take effect on the first = day of=20 the sixth month after its deposit with the depositary. Declarations may = be=20 withdrawn at any time by a Contracting State by means of formal notice = to the=20 depositary. As outlined above, such notices of intention shall take = effect on=20 the first day of the sixth month after the date of deposit thereof.

3.156

Finally, Article 17 requires Contracting States to provide to the = depositary,=20 within six months of ratification, acceptance, approval or accession, = written=20 information on their legislation regulating export of cultural objects. = This=20 information must be updated as domestic law changes.

4. Declarations necessitated by accession

3.157

Should Ireland accede to the Convention, the declarations required to = be=20 deposited at the time of such accession relate to time limitation, under = Article=20 3(5), the supremacy of other international or regional instruments, = under=20 Article 13(1) and (3) and the competent authority to which claims for=20 restitution or return should be submitted, under Article 16.

3.158

If our recommendation91 is = adopted that=20 no limitation period in respect

90	Article=20 14(2).

91	At para.=20 = 3.65.

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of the special class of object covered by Article 3(4) should be = imposed, no=20 declaration is necessary. It is only if a period of 75 years or more is = favoured=20 that a declaration to that effect is required.

3.159

No declaration is required in respect of application of other = international=20 instruments dealing with subject matter covered by the Convention, as = Ireland is=20 not a party to any such instrument. A declaration is required, = however, to=20 the effect that Ireland will apply European Community rules rather than = those=20 laid down in the Convention in respect of matters which are within the = scope of=20 both Directive 93/7 and of the Convention.

3.160

A declaration is also required as to the competent authority to which = claims=20 for restitution and return are to be submitted.

3.161

We recommend that Ireland make a declaration nominating the = Minister for=20 Arts, Heritage, the Gaeltacht and the Islands as the =93central = authority=94 to=20 which claims should be directed under the Convention. Given that the = Minister⁹² has=20 been so nominated under the 1994 Regulations effecting Directive = 93/7/EEC, the=20 conferring of such powers on the Minister in respect of the Convention = has the=20 benefit of creating a central co-ordinating body which may develop a = particular=20 expertise in the area of international claims, whether under the = Directive or=20 the Convention. Another obvious advantage is that there may be instances = in=20 which a party attempting to pursue a claim under the Directive may find = it=20 necessary instead to so pursue under the Convention; similar procedures = to those=20 already in place for processing requests for return under the Directive = may be=20 used under the Convention. The 1994 Regulations vest jurisdiction in the = High=20 Court to make an order, on application by the Minister, allowing = searches of=20 premises where there are reasonable grounds for believing that a = cultural object=20 unlawfully removed from a Member State is located there. The Court must = order=20 the return of a cultural object where it is satisfied that it has been=20 unlawfully removed from the territory of a Member State and may order = the=20 payment of compensation by the requesting State.

3.162

We are of the opinion that the filtering of claims through a = =93central=20 authority=94 represents a more desirable option than submission of = claims directly=20 to the Courts. Such authority may negotiate with claimants and possibly = avert=20 the necessity of pursuing a claim by judicial means; while such = negotiation is=20 expressly encouraged in the Directive, there is no such reference in the = Convention. This does not, of course, preclude national authorities from = engaging in such negotiation where they see fit. The central authority = may also=20 advise claimants as to whether their claims are accompanied by the = appropriate=20 documentation, for example by =93information of a factual or legal = nature=94=20 sufficient to assist the Court in deciding whether one of the interests = in=20 Article 5(3) has been significantly impaired. Because of the discretion=20 conferred on Courts under Article 5, such advice can only be given in = light of=20 standards developed by the

92	Formerly,=20 the Minister for Arts, Culture and the=20 = Gaeltacht.

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Courts in individual Contracting States. As jurisprudence develops as = to what=20 constitutes evidence sufficient to satisfy a Court, claimants who do not = meet=20 these prima facie standards may be advised that more detailed = evidence is=20 required to be adduced before proceeding further, thus saving court time = as well=20 as expense on the part of the claimant.

3.163

Such a structure is envisaged in Article 16(1)b, which allows States = to=20 designate an authority to receive requests or claims which may then = forward them=20 to the courts or other competent authorities in that State. The need for = the=20 courts to be involved at all is related to the demands of Irish = constitutional=20 law, which do not permit of interference with property rights except in = due=20 course of law.93 The = adjudication=20 of competing claims as to title in property is therefore a matter = peculiarly=20 within the competence of the courts. This may not be the case in other=20 Contracting States, where nomination of non-judicial bodies is permitted = under=20 their domestic law.

In Re=20 Haughey, O'Dalaigh CJ stated that =93in proceedings = before any=20 tribunal where a party to the proceedings is on risk of = having his=20 good name, or his person or property, or any of his personal = rights=20 jeopardised, the proceedings may be correctly classed as = proceedings=20 which may affect his rights, and in compliance with the = Constitution=20 the State, either through its enactments or through the = courts, must=20 outlaw any procedures which will restrict or prevent the = party=20 concerned from vindicating these rights=94: [1971] IR 217 at = 264. The=20 guarantee of due process in Article 38.1 has been extended = through a=20 number of judicial decisions to cases other than those of a = purely=20 criminal nature: Kelly, JM The Irish Constitution = (3rd=20 edition, 1994), p.614 et=20 = seq.

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CHAPTER 4: THE LAW OF LARCENY IN IRELAND AND CHAPTER II OF THE=20 CONVENTION

Introduction

4.1

In considering whether it would be beneficial for Ireland to accede = to the=20 Convention, the ease with which a claimant may rely on its provisions is = a key=20 factor. The fact that claims by private individuals may be brought only = under=20 Chapter II makes it particularly important to assess the scope of = application of=20 that part of the Convention.

4.2

Article 3 provides for reliance on Chapter II both where there has = been a=20 theft and where there has been unlawful excavation or lawful excavation = coupled=20 with unlawful retention. Theft is not defined in the Convention, the = drafters=20 having been of the view that the concept had broadly similar = characteristics in=20 all jurisdictions. Thus, whether a cultural object may become the = subject of a=20 claim under Chapter II of the Convention will depend on the law of theft = in the=20 State in which the object originated.1

4.3

Furthermore, the committee of experts considered that the increasing=20 incidence of clandestine excavations from archaeological sites called = for=20 special treatment. Article 3(2) was added, so that objects which are = unlawfully=20 excavated or lawfully excavated but unlawfully retained may be = =93considered=20 stolen=94. The treatment of such objects as stolen objects was, however, = made=20 subject at a late stage in the drafting process to a condition that to = so=20 consider must be consistent with the law of the State where excavation = took=20 place. Therefore, in order to avail of Chapter II of the Convention to = retrieve=20 excavated material, national law must provide that excavations and the=20 subsequent retention of the products of such excavations constitutes = theft. In=20 addition to the law of larceny, therefore, domestic provisions = regulating or=20 proscribing certain kinds of excavation and retention are relevant to = the scope=20 of Chapter II.2

4.4

It is important to note that the Convention does not place any = obligation on=20 States to so equate; for those which do not do so, the extent to = which

1	Article=20 3(1) of the Convention provides that =93[T]he possessor of a = stolen=20 cultural object shall return = it=94.

2	=93For the=20 purposes of this Convention, a cultural object which has = been=20 unlawfully excavated or lawfully excavated but unlawfully = retained,=20 shall be considered stolen where consistent with the law of = the=20 State where the excavation took place=94 Convention, Article = = 3(2).

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claimants in those jurisdictions may rely on the Convention will be=20 diminished.

4.5

In this Chapter, we will consider the extent to which Irish law, both = in=20 relation to larceny and to control of excavation, constitutes a = satisfactory=20 framework within which to proceed under Chapter II of the Convention. We = will=20 first consider the various elements of larceny which require to be = proved in=20 order to proceed under the Convention; we will then consider the = interplay=20 between Article 3(2) and our larceny and heritage protection laws. = Finally, we=20 will deal with larceny in the specific context of archaeological = material found=20 in land; rules of ownership at common law and under statute affect the = question=20 of whether Chapter II may be invoked where such objects are taken from = the=20 land.

A. Larceny in Irish law

4.6

The Larceny Act, 1916 as amended (the =931916 Act=94) = consolidated the=20 common law of larceny and carries over many provisions which are = inconsistent=20 with what one might intuitively regard as theft. At common law, = limitations on=20 the scope of the crime were imposed by judicial decision, motivated by = the=20 desire to avoid capital punishment and later in order to limit the = number of=20 offences in respect of which the accused could be denied access to = counsel and=20 witnesses.³

4.7

In order to prove larceny, both the physical act and the mental state = of the=20 accused actor must be established and proved to have coincided in point = of time.=20 In the context of the Convention, the person against whom the claim is = brought=20 is unlikely to be the thief himself, but rather the person who acquired = the=20 object from the thief or from some other person in the chain between = thief and=20 possessor. Therefore, the mental disposition of the original taker at = the time=20 of the taking will not be at issue at this juncture, since it will not = be=20 possible to adduce evidence of mens rea in the absence of the = alleged=20 wrongdoer. Only those elements of the crime of larceny which are capable = of=20 being proved or which are ascertainable from the circumstances will be = required=20 to be established by the claimant in order to proceed under Chapter = II.

4.8

Section 1 of the 1916 Act provides in relevant part that;

(1)	A person steals who, without the consent of the owner,=20 fraudulently and without a claim of right made in good = faith, takes=20 and carries away anything capable of being stolen with = intent, at=20 the time of such taking, permanently to deprive the owner=20 thereof...

(2)

(i)

the expression =93takes=94 includes obtaining the=20 possession...

3	Kenny's=20 Outlines of the Criminal Law (19th ed.), edited by = JCWTurner (Cambridge University Press, 1966), paras. = 221,=20 = 74.

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(d)

by finding, where at the time of the finding the finder = believes=20 that the owner can be discovered by taking reasonable=20 steps;

(ii)

the expression =93carries away=94 includes any removal of = anything=20 from the place which it occupies, but in the case of a thing = attached, only if it has been completely=20 detached;

(iii)

the expression =93owner=94 includes any part owner, or = person having=20 possession or control of, or a special property in, anything = capable=20 of being = stolen.

1. =93Ownership=94 under the Larceny Act, 1916

4.9

The first issue is whether the claimant is, in fact, the owner of the = goods=20 for the purposes of the 1916 Act. It has been observed that the question = of what=20 ownership means has long been a source of philosophical debate, but as a = matter=20 of practice the matter rarely arises because the ways in which ownership = may be=20 acquired, and therefore proved, are few and well-defined.4 = Ownership is the=20 =93greatest right or bundle of rights than can exist in relation to = property=94, and=20 most commonly is acquired by the transfer of the thing, either = gratuitously or=20 for value, from a person who already owns it, or by taking possession of = things=20 which have no owner. Possession, on the other hand, refers to a state of = affairs=20 rather than to an interest.5 It may = be a)=20 actual, which requires both an intention to control and de facto = control;=20 b) constructive, where a person is entitled to, but is not in actual = possession,=20 for example, the property is in the hands of a bailee; or c) = symbolic.

4.10

When goods are unlawfully taken, title remains in the owner, who has = the=20 right to possession of them against the world. Until he recovers the = goods,=20 however, their possession is in the taker or the person who acquires the = goods=20 from the taker. That person has a right to possession of the thing which = is good=20 against all the world except the owner, or a prior possessor if the = object was=20 taken from such a person. This is of central importance since larceny is = an=20 offence against possession, not ownership, of goods: the definition of = =93owner=94=20 in section 1 of the Larceny Act, 1916 includes the person having=20 possession or control of the object. Situations may arise, therefore, = where a=20 claim for return is brought under the Convention by a person who is not = the=20 original owner, but a subsequent possessor from whom it has been stolen. = In that=20 case, the dispossessed owner would have to establish title superior to = that of=20 the claimant

4	Bell, A P=20 Modern Law of Personal Property in England and = Ireland=20 (Butterworths, 1989) p.66.

5	Ibid.,=20 = p.33.

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in order to secure its return to him rather than to the claimant.⁶

2. Mens rea and actus reus for larceny

4.11

The Larceny Act, 1916 requires that the taking be fraudulent = and=20 without a claim of right made in good faith. It has long been held by = the Irish=20 courts that a =93claim of right made in good faith=94 existed where the = accused=20 =93honestly believed that he was entitled=94 to take the object =93even = though his=20 claim ... was not well founded in law or in fact=94.7 Given = that this=20 element requires evidence of the subjective belief of the taker which = will not=20 be capable of being proved in the taker's absence, this element must = necessarily=20 be excluded from an evaluation of whether the object was =93stolen=94. = It is=20 sufficient that the claimant establishes that he was in possession of = the object=20 at the time of the taking and that he did not consent to the taking, the = dishonesty or otherwise of the taker being impossible to establish. It = is=20 immaterial to the question of whether a theft has occurred whether that = person=20 is the rightful owner or a taker or transferee of a taker, since as we = have=20 seen, larceny is an offence against possession.

3 Object must be =93capable of being stolen=94

4.12

It must also be established that the object in question is of a kind = which is=20 =93capable of being stolen=94. The 1916 Act places restrictions on the = types of=20 objects which may become the subject of a charge of larceny. Section = 1(3) states=20 that:

=93Everything which has value and is the property of any = person, and if=20 adhering to the realty then after severance therefrom, shall be = capable of=20 being stolen [p]rovided that (a) ... anything attached to or = forming part=20 of the realty shall not be capable of being stolen by the person = who=20 severs the same from the realty, unless after severance he has = abandoned=20 possession thereof.

4.13

The source of the exclusion lies in the common law, which held that = land was=20 not capable of being stolen; anything which =93savoured of the realty=94 = was also=20 excluded.⁸ This=20 exclusion is of particular relevance in the context of heritage = protection,=20 since much of the threat to cultural property stems from looting of = objects from=20 historic sites and from land. It is important to ensure that our law of = larceny=20 does not present any obstacles to reliance on the Convention in the = particular=20 case of objects yielded in this way.

The=20 Convention text itself does not specify the person to whom = the=20 object is to be returned, but Unidroit in its Explanatory = Memorandum=20 observes that it will be =93for the court to determine to = whom the=20 object is to be returned in accordance with the applicable = rules of=20 law=94: Acts and Proceedings of the Diplomatic = Conference,=20 p.27, para. 43.

7	People=20 (Attorney General) v. Grey [1944] IR 331 at=20 334=965.

In the=20 United Kingdom, the Theft Act 1968 dispensed with the = requirement of taking and carrying away so that the = technical=20 obstacle to land being capable of being stolen has = disappeared. The=20 drafters chose, however, to limit the circumstances in which = this=20 could occur: see section 4(2) of the=20 = Act.

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4. Larceny of objects from land

4.14

The precise distinction between objects which fall within the proviso = to=20 section 1(3) and those which, despite their association with the realty = do not=20 so fall, has not been made clear by the courts. In the case of = Billing v.=20 Pill,⁹=20 which involved the taking of a hut which was attached to a concrete = base, it was=20 argued by the prosecution that the hut did not attach to or form part of = the=20 realty, being a temporary structure which could easily be removed. Lord = Goddard=20 CJ interpreted the proviso as meaning =93attached so as to form part = of=94, which=20 requires a greater degree of annexation, perhaps, than was intended in = the Act.=20 He referred to a test laid down by du Parcq LJ:

=93If the object and purpose was for the permanent and = substantial=20 improvement of the land or building, the article will be deemed to = be a=20 fixture, but if it was attached to the premises merely for a = temporary=20 purpose or for the more complete enjoyment and use of it as a = chattel,=20 then it will not lose its chattel character and it does not become = part of=20 the realty.=9410

4.15

The decision has been criticised11 on the = basis that=20 the purpose of the section was to exclude both objects attached to = and=20 objects forming part of the realty from the scope of the crime of = larceny. Even=20 on this interpretation, however, it is doubtful whether objects such as=20 archaeological objects which have become embedded in the soil can be = said to=20 attach to or form part of the land, within the meaning intended by the = drafters=20 of the Act. The uncertainty surrounding this issue is illustrated by the = observation that

=93The following acts, which would not (or may not) have = been=20 larceny ... [prior to the Theft Act 1968] are theft under = the new=20 [Act]: D enters upon land in the possession of P and ... (i) = removes a=20 stone statue fixed in the land; ... (v) takes away P's farm = gate=94.12 = (emphasis=20 supplied)

4.16

As legislation similar to the Theft Act, 1968 has not been = enacted in=20 Ireland, this uncertainty continues to be a feature of Irish law.

4.17

The House of Lords addressed the question of annexation to land in = the recent=20 case of Elitestone Ltd. v. Morris.13 The = plaintiffs,=20 freehold owners of a piece of land in 27 lots, wished to redevelop the = land and=20 brought proceedings for possession against the occupiers of the 27 lots. = The=20 defendants occupied a chalet on one of the lots as their residence under = an=20 annual licence, for which they paid a fee. They resisted the proceedings = on the=20 basis that they were tenants from year to year and so were protected by = the=20 Rent Act 1977. The plaintiffs contended, on the other hand, that = the=20 bungalow was not a fixture but a chattel

9	[1954] 1 QB=20 70.

10	Laws of=20 England, Hailsham ed., vol. 20, para.=20 107.

11	Smith, JC,=20 The Law of Theft (5th ed., Butterworths, 1984), para. = 93.

12	Ibid.,=20 para 90.

13	[1997] 2=20 All ER = 513.

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and that the demised premises consisted only of the site, so that the = defendants could not claim the protection of the Rent Act. Lord Lloyd, = in=20 finding for the defendants, said that

=93If a structure can only be enjoyed in situ, and is = such that it=20 cannot be removed in whole or in sections to another site, there = is at=20 least a strong inference that the purpose of placing the structure = on the=20 original site was that it should form part of the realty at that = site, and=20 therefore cease to be a chattel=9414

4.18

The intention with which the object was placed in or on the land is,=20 therefore, central to the question of whether the object has become part = of the=20 realty. The example given in the case of Holland v. Hodgson and = cited by=20 Lord Lloyd involved blocks of stone placed on top of each other to make = a dry=20 stone wall; these would become part of the land, whereas the same stones = in a=20 builder's yard stacked on top of each other for convenience would not = lose their=20 chattel character. The absence of any instrument of attachment was not=20 dispositive, gravity being as effective a means of attachment as clamps = or=20 cement. Lord Lloyd pointed out that the tests commonly employed in this = regard,=20 including that which has regard to the degree and purpose of annexation, = are=20 useful when considering objects such as tapestries affixed to the walls = of a=20 home, as in the case of Ward v. Taylor,15 but are = less so=20 in the case of a house, where =93the answer is as much a matter of = common sense as=20 precise analysis=94.16

4.19

It was emphasised that intention must be assessed objectively, Lord = Clyde=20 remarking that use of that term is somewhat misleading as it is the = purpose=20 actually served by the object in its existing location which is used to = infer=20 such intention.

4.20

Applying the findings in Elitestone to the question under = review, it=20 would seem that objects which have been buried in the land for safe = keeping or=20 which have been abandoned and have become embedded over time in the soil = do not=20 form part of the realty. The intention apparent from the circumstances = existing=20 at the time of the find will not, in such cases, indicate a wish for the = objects=20 to become permanently affixed in the land, nor will they in fact have = become so=20 affixed. One test which is frequently applied, that of whether the = purpose of=20 placing the object in its location was for the better enjoyment of the = object as=20 a chattel or to effect a permanent improvement of the freehold, is not = strictly=20 speaking applicable to the situations at issue. It is clear, however, = that=20 objects deliberately buried in the land or which have become buried over = time=20 were not so buried for the purpose of permanently improving the = freehold.

4.21

The test is, however, relevant in the context of objects which are = set in the=20 land for decorative or ritual purposes. We are familiar in this = jurisdiction=20 with

14	Elitestone=20 Ltd. v. Morris [1997] 2 All ER 513 at = 522.

15	[1901] 1=20 Ch. 523.

16	Elitestone=20 Ltd v. Morris [1997] 2 All ER 513 at=20 519.

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the removal of celtic crosses. It is arguable that these crosses are = attached=20 to or form part of the realty, so that those who engage in their removal = cannot=20 be convicted of larceny unless, having disconnected the object, they = temporarily=20 abandon possession thereof. In that event, the object is deemed to = revert to the=20 possession of the person entitled thereto and only if the would-be thief = then=20 retrieves the disjointed cross may he or she be deemed to be removing = the object=20 afresh from the owner.17 This = question is=20 also relevant where objects are buried in the land.

4.22

It is true to say that a celtic cross is =93annexed=94 to the land in = a way which=20 an object which has, over time, simply become embedded in the soil is = not. Such=20 an object has a purpose in its location, whereas the objects referred to = above=20 are deprived of their purpose by virtue of being hidden in the soil. The = difficulty in removing a cross from the ground also suggests a degree of = annexation not present in the case of buried objects. It remains = difficult to=20 establish, however, whether such a cross effects a more convenient use = of the=20 land =96 for example, land around such crosses may have religious = significance to=20 which the object contributes =96 or of the cross itself. As the law = currently=20 stands, it is impossible to anticipate whether the taking of such a = cross=20 without the consent of the owner would be treated as larceny, the issue = not=20 having been considered by an Irish court. In the event that a charge of = larceny=20 were brought, there does not appear to us to be any valid basis for = treating=20 differently the person who removed the cross from land and the person = who took=20 it from a museum.

4.23

Should this issue arise, the judiciary is likely to take a pragmatic = view and=20 regard objects retrieved from under the land as capable of being stolen. = Thus,=20 we are of the view that the existing restriction on the larcenability of = land is=20 unlikely to extend to such objects and, therefore, does not present an = obstacle=20 to the application of the Convention. However, given the threat posed by = clandestine excavation, it is imperative that the products of such = excavations=20 are brought clearly within the sphere of both domestic larceny law and = of the=20 Convention. We consider it advisable, therefore, to remove the = restriction.

4.24

In our Report on the Law Relating to Dishonesty,18 we = recommended=20 introduction of legislation similar to section 4(2) of the Theft Act = 1968,=20 excluding the provision in section 4(2)(a) relating to trustees. The = section=20 provides that

=93A person cannot steal land, or things forming part of land = and severed=20 from it by him or by his directions, except in the following = cases, that=20 is to say=96

(b) when he is not in possession of the land and appropriates = anything=20 forming part of the land by severing it or causing it to be = severed, or=20 after it has been severed; or

17	See R.=20 v. Foley, 26 L.R.Ir. 299.

18	LRC=20 43=961992, para.=20 20.18.

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(c) when, being in possession of the land under a tenancy, he=20 appropriates the whole or part of any fixture or structure let to = be used=20 with the land.=94

We now reiterate that recommendation.

B. Unlawful excavation and unlawful retention

1. The rationale behind Article 3(2)

4.25

In addition to objects which are stolen under the domestic law, the=20 Convention provides that certain objects procured in ways which may not=20 constitute theft per se may also be included within the remit of = Chapter=20 II. Article 3(2) of the Convention states that

For the purposes of this Convention, a cultural object which = has been=20 unlawfully excavated or lawfully excavated but unlawfully retained = shall=20 be considered stolen when consistent with the law of the State = where=20 the excavation took place. [emphasis = supplied]

4.26

This provision was supported by those countries in which clandestine=20 excavation is the principal way in which objects are lost. Their concern = was=20 that archaeological objects located under the ground were particularly=20 vulnerable to clandestine excavation and, therefore, required special=20 protection.

4.27

There was considerable opposition to the provision, however, on a = number of=20 grounds. Firstly, it was argued that the aim of the Convention was to = assist in=20 the return of objects, and not to fill gaps in the internal laws of = Contracting=20 States. If a State's law treated an unlawful excavation as theft, then = Chapter=20 II of the Convention would apply. Otherwise, Chapter III would apply = provided=20 that the State had laws prohibiting the export of objects from such = excavations.=20 Article 3(2) was superfluous in either case.19 = Observers from=20 the International Bar Association pointed out that the majority of those = supporting the provision represented States in which cultural objects = located in=20 the ground were State property and therefore fell automatically within = the scope=20 of Article 3(1).20 UNESCO = observers=20 considered that the difficulty in recovering clandestinely excavated = objects was=20 not so much that of proving ownership, but rather that of proving from = which=20 country the objects came and when.21 If = these facts=20 can be proved, then clandestinely excavated objects can be retrieved = either=20 under Chapter II or Chapter III.

4.28

On the other hand, those countries which supported the provision = tended to be=20 those in which illegal excavation is a particularly serious problem;=20 according

19	Mr Renold=20 (Switzerland), Acts and Proceedings of the Diplomatic=20 Conference, p. 170.

20	Ibid.,=20 p.281.

21	Acts and=20 Proceedings of the Diplomatic Conference,=20 = p.94.

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to the Peruvian delegation, for example, more than 90 per cent of the = country's archaeological objects are located underground, making it a = regular=20 target of clandestine excavation.

4.29

It appears that States supporting the inclusion of Article 3(2) may = have been=20 under a misapprehension as to its effect. Whatever about its potential = impact in=20 its original form, the addition of the proviso regarding consistency = with=20 national law makes the provision somewhat otiose. The effect of the = proviso is=20 to require either the existence, or necessitate the enactment in = domestic law,=20 of special provisions equating certain activities with theft for the = purposes of=20 the Convention. In its original form, certain objects were to be = considered=20 stolen for the purposes of the Convention regardless of whether domestic = law so=20 provided.

4.30

The provision may, however, prove beneficial in some respects. = Because it=20 represents a departure from the assumption underpinning Article 3(1) = that theft=20 has a similar meaning in all jurisdictions, it permits States which do = not=20 equate unlawful excavation or lawful excavation and unlawful retention = with=20 theft to introduce provisions to that effect. States which do not so = equate will=20 then be required to treat as stolen an object procured in this way when = a=20 request is made for its return to the jurisdiction which has enacted = such=20 provisions.

2. Article 3(2) and Irish law

4.31

Under Irish National Monuments legislation, excavation or retention = of=20 archaeological objects is unlawful in a broad range of circumstances. = The Acts=20 prohibit excavation of archaeological material save in accordance with = the Acts,=20 and require reporting of new finds as well as of material retained from = finds=20 which occurred prior to the National Monuments Act, 1994. In = addition,=20 outright ownership is conferred on the State of material found in the = land after=20 a certain date, so that the avoidance of a charge of larceny on the = basis of=20 abandonment of the objects by their original owners is no longer open to = a=20 finder.

4.32

The combined effect of National Monuments legislation, the law of = trespass=20 and our larceny laws is to make it possible to establish a case of = larceny where=20 archaeological objects are unlawfully excavated and unlawfully retained. = We=20 conclude below that existing provisions in Irish law obviate the need to = enact=20 further legislation dealing specifically with excavated material.

(a) Definition of archaeological object

4.33

When considering whether there is a need to provide further = protection in=20 Irish law specifically for objects retrieved from land, it is necessary = to=20 consider whether =93archaeological objects=94 as defined in Irish law is = sufficiently extensive to include all types of cultural material likely = to be=20 borne up by excavations.

An archaeological object is

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=93any chattel, whether in a manufactured or partly = manufactured or an=20 unmanufactured state which by reason of the archaeological = interest=20 attaching thereto or of its association with any Irish historical = event or=20 person has a value substantially greater than its intrinsic = (including=20 artistic) value, and the said expression includes ancient human, = animal or=20 plant remains.=9422

4.34

As we have seen, =93cultural objects=94 are those which =93on = religious or secular=20 grounds, are of importance for archaeology, prehistory, history, = literature, art=20 or science=94 and belong to a list of objects set out in the Annex to = the=20 Convention. The Annex includes =93property relating to history, = including the=20 history of science and technology and military and social history, to = the life=20 of national leaders, thinkers, scientists and artists and to events of = national=20 importance=94, =93products of archaeological excavations (including = regular and=20 clandestine) or of archaeological discoveries=94, and =93elements of = artistic or=20 historical monuments or archaeological sites which have been = dismembered=94.

4.35

In practice, =93cultural objects=94 which are lost specifically = through=20 excavation and which are sufficiently important to warrant an = international=20 claim for return, are likely to constitute =93archaeological objects=94 = under Irish=20 law. In the specific context of excavation, therefore, Irish law mirrors = the=20 Convention sufficiently to obviate the need to provide additional = protection for=20 those cultural objects which are not =93archaeological objects=94.

4.36

It is important to note, however, that despite a statutory definition = of=20 archaeological material, the scope of the term has not yet been = delineated by=20 the courts. Disputes have arisen on numerous occasions as to whether = particular=20 objects which have been retained by their finders constitute = archaeological=20 objects. Comprehensive treatment of this issue by the judiciary is = necessary in=20 order to clarify the types of object in respect of which rights have = been=20 statutorily modified. If Ireland accedes to the Convention, this = discussion is=20 made more urgent, as it directly impacts on the applicability of the = Convention.=20 The more widely the definition is interpreted, the greater is the extent = to=20 which the Convention may be relied on.

(b) Unlawful excavation

4.37

An excavation may be unlawful under the National Monuments Acts or at = common=20 law. The National Monuments Act, 1930 (the =931930 Act=94) makes = it unlawful=20 to =93excavate, dig, plough or otherwise disturb the ground within, = around or in=20 proximity to any ... national monument [as defined in the Act as amended = by=20 section 16 of the 1994 Act] without or otherwise than in accordance with = the=20 consent=94 of the Commissioner for Public Works and, in certain = circumstances, the=20 relevant local authority. The National Monuments Act, 1987 (the = =931987=20 Act=94)

22	1930 Act=20 section 2, as amended by section 14 of the 1994=20 = Act.

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prohibits the use of detection devices23 in = certain=20 designated areas.24 There = is also a=20 blanket prohibition on the use of such devices for the purpose of = searching for=20 archaeological objects. Thus, if one uses such a device in a = non-designated area=20 with the purpose of finding an archaeological object, or so uses in a = designated=20 area for a licit purpose, the excavation is unlawful in both instances = for=20 breaching the provisions of section 2(1) of the 1987 Act. Significantly, = section=20 2(6) places the burden of proving that the use of a detection device was = not for=20 an illicit purpose on the defendant; given that metal detectors are used = almost=20 exclusively²⁵=20 to search for treasure, it is likely to prove difficult to establish = that such a=20 motive was not in fact present in a particular case.26

4.38

A person who excavates, in a non-designated area, whether or not for = the=20 purpose of searching for archaeological objects, using tools such as = shovels or=20 mechanical diggers and who finds such an object, commits an offence = under=20 section 19 of the National Monuments Act, 1994 (the =931994 = Act=94) if he or=20 she removes or otherwise interferes with it, =93unless he [or she] has = reasonable=20 cause to believe that it is necessary to remove it so as to preserve it = or keep=20 it safe.=94²⁷ The=20 excavation per se is not unlawful under the section; it is the = removal of=20 the object, rather than the initial act of digging, which is = punishable.28 Such a = person=20 would, however, fall foul of the reporting provisions in the 1994 Act = should he=20 or she fail to report a subsequent find within the requisite time as = provided in=20 section 19 of that Act. The offence can in these circumstances properly = be=20 described as an =93unlawful retention=94 and falls within the remit of = Article 3(2)=20 of the Convention. Unlawful retention is dealt with below.

4.39

In addition to the provisions of the National Monuments Acts, = unlawful=20 excavation may occur at common law. An excavation which occurs on the = land of=20 another without the owner's consent is unlawful by reason of trespass. = If the=20 purpose for which a detection device is used in these circumstances is = one other=20 than that of searching for archaeological objects,29 or the = area is=20 not one which is designated under section 2(1) of the 1987 Act, the = excavation=20 is not unlawful either under the 1987 Act or at common law. The = subsequent=20 behaviour of the finder may, however, amount to unlawful retention.

4.40

While unlawful excavation is punishable in Irish law, it is doubtful = whether=20 this in itself is sufficient to allow objects procured on foot of an = unlawful=20 excavation to be =93considered stolen=94 in accordance with Article = 3(2). The

=93Detection=20 device=94 is defined in section 2(8) of the National = Monuments Act,=20 1987 as a device =93designed or adapted for detecting or = locating any=20 metal or mineral on or in the ground, on, in or under the = sea bed or=20 on or in land covered by water, but does not include a=20 camera=94.

24	National=20 Monuments Act, 1987, section = 2(1).

25	The=20 exception, according to the National Museum, is construction = companies and local authorities, who use them to locate = buried cable=20 and piping.

26	Section 5=20 of the 1994 Act provides for the forfeiture of such devices = in=20 certain circumstances.

27	Section 19=20 of the 1994 Act, substituting section 23(1) of the 1930=20 Act.

It is=20 submitted that the proscription in section 14 of the 1930 = Act on=20 digging etc. in the vicinity of a national monument should = be=20 extended to prohibit a person from continuing to dig on any = land=20 where he or she has reasonable grounds to believe that an=20 archaeological object is in the = soil.

29	Some=20 experts are of the view that the 1987 Act should be amended = to=20 prohibit the use of detection devices except under=20 = licence.

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question is whether it would be advisable to introduce a legislative=20 provision which would permit this for the purposes of the Convention. We = are of=20 the view that it should not be possible to treat as stolen the products = of an=20 unlawful excavation per se. While an excavation in circumstances = which=20 are prohibited by the National Monuments Acts may provide compelling = evidence of=20 mens rea, it does not, in itself, demonstrate any of the elements = of the=20 actus reus for larceny. Only when some further action is taken in = respect=20 of the objects yielded by the excavation is the actus reus = completed.

(c) Unlawful retention

4.41

As we have seen, there are a limited number of situations in which an = excavation may be lawful; where this is so, the actor may nonetheless = fall foul=20 of the 1994 Act if he or she retains material which constitutes an=20 =93archaeological object=94 and fails to declare it to the State within = the=20 requisite time.30 It is = consistent=20 with the National Monuments Acts, therefore, to regard objects which = have not=20 been reported as =93unlawfully retained=94.

4.42

Section 2 of the 1994 Act confers on the State ownership of all=20 archaeological objects found within the State which have no known owner, = thereby=20 creating a category of objects which are, for the first time, clearly=20 larcenable. Prior to the 1994 Act, such objects arguably would have been = beyond=20 the remit of the 1916 Act because they had no =93owner=94.31

4.43

=93Taking=94 under the 1916 Act includes the taking of possession by = finding,=20 where the taker believes that an owner can be found by taking reasonable = steps.³² This=20 covers situations in which an object is either lying on the land or = where an=20 item is found concealed in the soil; as we shall see, the outcome of = claims to=20 ownership may differ depending on where the object is found.

4.44

Since the 1994 Act, one who fails to report a finding of such an = object=20 fulfils that part of the actus reus of the crime of larceny which = requires the taking and carrying away of something capable of being = stolen.33 If the = taker is=20 also the owner of the land, however, the issue arises whether that = person can=20 properly be said to have stolen something found on his or her own land. = If the=20 1994 Act has successfully vested ownership in the State of such objects, = retention of such objects by the landowner would constitute taking = without=20 consent of the owner and therefore satisfy the second limb of the = actus=20 reus. Ownership rights as between landowners and the State are = considered=20 below.

4.45

Section 1 of the 1916 Act makes clear that whether or not the case = is

30	Section 4,=20 1994 Act.

In Webb=20 v. Ireland, the defendants submitted before the Supreme = Court=20 that the plaintiffs may have committed larceny. This was not = pleaded=20 however; Finlay CJ found that such a claim was not = =93substantiated or=20 proved by any evidence in the action=94 and rejected such an = allegation =93unreservedly=94: [1988] IR 353 at=20 377.

32	Section 1=20 (2) (i) (d) of the 1916 Act.

33	1916 Act,=20 section = 1(1).

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one of larceny by finding, the intent permanently to deprive the = owner at the=20 time of the taking must be present in all cases. For the purposes of the = Convention, however, the mere retention of the object, regardless of = intent,=20 together with the existence of an owner whose consent was not given to = the=20 taking, are the only relevant factors in deciding whether they = constitute stolen=20 objects.

C. Ownership as between landowners, finders and the = State

4.46

The extent to which landowners =93own=94 objects on or in their land = is central=20 to the question of whether such objects are capable of being stolen. If = the=20 correct interpretation of the 1994 Act is that a landowner prima = facie=20 has no rights as against the State in any archaeological objects found = in or on=20 his land, his retention of them in the absence of a waiver by the State = of its=20 rights may constitute larceny. In the case of objects found in land = which do not=20 constitute archaeological objects, the question arises whether a = landowner may=20 assert ownership of such objects as against the finder, or whether they=20 constitute abandoned =96 and therefore ownerless =96 objects, in respect = of which a=20 finder may legitimately assume ownership. In the event that the finder = does not=20 have a valid claim to the objects and subsequently exports them, it may = be that=20 such objects would constitute stolen objects and thus be retrieved under = Chapter=20 II of the Convention.

1. Ownership at Common Law

4.47

Ownership of objects under the surface of the land was addressed in = the case=20 of Elwes v. Brigg,34 where a = boat, the=20 existence of which was unknown to the lessor, was nevertheless found to = belong=20 to him. Chitty J held that the common law principle that a landowner = owned=20 everything above and below the surface of the ground was an

=93absolute rule of law, not depending on intention; for = instance, if a=20 man digs in the land of another, and permanently fixes in the soil = stones=20 or bricks, or the like, as the foundation of a house, the stones = or bricks=20 become the property of the owner of the soil, whatever may have = been the=20 intention of the person who so placed them there, and even against = his=20 declared intention that they should remain his property. Nor does = it=20 appear to me to be material that the things should have been = placed there=20 by the hand of man; it would seem to be sufficient if they have = become=20 permanently fixed in the soil by the operation of natural = causes=94.35

4.48

The principle of absolute ownership is qualified, however, by the=20 Constitution, by judicial decision and by statute: the Air Navigation = and=20 Transport

34	[1886] 33=20 Ch 562.

35	Ibid.=20 at = 567.

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PAGE = NUMBER=3D75=20

Act, 1936, for example, provides that no action in nuisance or = trespass shall lie where aircraft fly over property at a height which is = reasonable in light of wind, weather and other circumstances; Article 10 = of the=20 Constitution vests in the State =93all natural resources, including the = air and=20 all forms of potential energy=94.

4.49

One test for ownership, as between owners or occupiers of land and = finders,=20 and one which was quoted by Finlay CJ in Webb, was that =93legal = possession=20 rests on a real de facto possession constituted by the occupier's = general=20 power and intent to exclude unauthorised interference=94.36 Finlay = CJ went on=20 to distinguish, with regard to the question of the level of control = required to=20 be manifested, objects found on and those attached to or under the = land:

=93The extent to which, where objects are attached to or under = the land,=20 an absence of control may deprive the owner against a finder is = probably=20 limited to cases such as Hannah v. Peel [1945] KB 509, = where the=20 owner of a house had never entered into possession of it though = title had=20 devolved upon him.=9437

4.50

Such intention may be express or implied from the circumstances. The = fact=20 that only a minimum degree of control is necessary to satisfy this test = means=20 that in practice it does not present a significant obstacle to a = landowner's=20 claim to ownership as against a finder. Moreover, those who find objects = on foot=20 of a trespass should not, according to Finlay CJ, =93acquire any rights = of=20 ownership to the land or things found in it=94 as a matter of public = policy. As=20 between landowners and finders, therefore, an act of trespass on the = finder's=20 part will defeat his or her claim to ownership as against the landowner, = regardless of the extent of the trespass.38

4.51

Where a finder has the landowner's consent to enter on and dig on the = land=20 and the landowner waives his right in any objects found, the finder = steps into=20 the landowner's shoes and assumes rights co-extensive with those of the=20 landowner. In this case, the finder would be treated as the landowner = for the=20 purposes of evaluating his rights in the objects as against any other = person. If=20 the landowner does not waive his or her rights, however, the issue of=20 abandonment may become relevant.

4.52

A landowner's rights in private property were also qualified at = common law by=20 the royal prerogative in treasure trove. This right applied only to = valuable=20 chattels, made substantially of gold or silver, which had been concealed = for the=20 purpose of protecting them and with the intention of retrieving them. In = the=20 leading case on the issue of intent to recover, Attorney General v. = Trustees=20 of the British Museum, detailed archaeological evidence was adduced = to=20 establish

36	Pollock and=20 Wright, Possession in the Common Law, p.41; Webb = v.=20 Ireland [1988] IR 353 at = 378.

37	Webb v.=20 Ireland [1988] IR 353 at 378.

38	Ibid.,=20 per Finlay CJ at 379.

39	[1903] 2 Ch=20 = 598.

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whether the objects constituted an offering to a god =96 in which = case there=20 would have been no intention to retrieve =96 or had been hidden, in = which case=20 they constituted treasure trove. The court found that once it was = established=20 that the objects found buried were of gold or silver, there was a = presumption=20 that they were treasure trove, and it was for the party denying this to = rebut=20 the presumption.

4.53

Where the presumption was rebutted by evidence that the objects had = been=20 abandoned by their original owners, they were deemed to be the property = of the=20 finder. It was, therefore, the hiding which entitled the Crown to the = treasure.=20 In Webb, Walsh J distinguished between objects which were lost = and those=20 which were secreted in the land for safe keeping, and held that the = owner of the=20 land on or in which objects which had been intentionally hidden are = found could=20 not claim to be the owner simply by virtue of being the owner of the = land. To so=20 hold would be to

=93fail to vindicate the rights of property of the true owners = of the=20 chattels so placed and would permit the type of injustice which = Article=20 40.3 of the Constitution is designed to prevent.=9440

4.54

The objects at issue in that case were found not to have been = abandoned by=20 their true owners. Significantly, Walsh J added that he was not = =93concerned to=20 offer any view on what might be the situation if the chattels were truly = lost or=20 abandoned.=94

Webb v. Ireland

4.55

The status of the royal prerogative in treasure trove was considered = at=20 length by the Supreme Court in Webb v. Ireland41 as were = a number=20 of other complex questions of law and policy: the extent of ownership of = archaeological objects as between individuals and the State, treatment = of the=20 trespassory finder, the right to compensation. While the Supreme Court = explored=20 these issues at length, its decision to allow the State to retain the = hoard=20 rested on the particular facts of the case, where the landowners had = conveyed=20 their interest to the State in return for an award.

4.56

The case involved the finding of the =93Derrynaflan Hoard=94, which = consisted of=20 an ancient chalice and other religious artefacts, on the site of a = national=20 monument. The finders came upon the hoard using metal detectors and dug = in the=20 land without the landowners' consent. The hoard was delivered up to the = National=20 Museum, which promised the finders that they would be honourably = treated. Having=20 failed to negotiate an award acceptable to both parties, the finders = instituted=20 proceedings for the return of the hoard. Meanwhile the landowners = accepted an=20 award from the State and signed documents conveying

40	[1988] IR=20 353 at 389=96390.

41	[1988] IR=20 = 353.

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their interest in the objects to the State.

4.57

The High Court found that, following Byrne v. Ireland,42 no = royal=20 prerogatives had survived enactment of the 1922 Constitution, so that = the=20 State's claim on this ground failed.43 The = Court went on=20 to find for the plaintiffs on the basis that their surrender of the = objects to=20 the National Museum constituted a bailment and the State as bailee was = estopped=20 from denying the bailors' title. It was not a valid defence for the = bailee to=20 prove a title in himself to the goods, where the alleged title had = arisen after=20 the date of the bailment.44 Blayney = J found=20 that the outcome might have been different if the State had been = entitled to the=20 hoard as treasure trove, in which case the State's right to it would = have arisen=20 at the moment when it was found. Its delivery to the Museum would then = have=20 constituted delivery to the party entitled to ownership and no bailment = would=20 have been created.45 The = absence of a=20 prerogative to treasure trove defeated such a claim. Blayney J also = commented=20 that it was not necessary for him to consider =93the difficult legal = issue [of]=20 the respective rights to the hoard of the plaintiffs as finders and [the = landowners]=94 nor the effect of the conveyances by the landowners of = their=20 interests to the State.46

4.58

On appeal to the Supreme Court, the State asserted title to the goods = as=20 derived from the landowners. It was argued that firstly, landowners had = title in=20 any chattels found in their land against any finder in any circumstances = and=20 secondly, that the finders did not acquire title in the goods as they = had been=20 found by an act of trespass and/or in the course of the commission of an = offence=20 under section 14 of the 1930 Act.47

4.59

In respect of the first ground, Finlay CJ approved of the findings of = Donaldson LJ in Parker v. British Airways48 that = =93an occupier=20 of land has rights superior to those of a finder over chattels in or = attached to=20 that land [and] the finder of a chattel acquires very limited rights = over it if=20 he takes it into his care and control in the course of = trespassing=94.49 The = owners of the=20 land on which the Derrynaflan Hoard was found had a right to possession = superior=20 to that of the finders; that title had become vested in the State under = the=20 conveyances executed by the parties. Finlay CJ added that while he was = not=20 required to offer any view on whether the plaintiffs lost any right to=20 possession that they might have had but for the trespass, he was willing = to do=20 so given that the issue had been argued at length. He found that =93the = general=20 principle of public policy seems clearly to be that [the trespassers] = should=20 not, because of that trespass, acquire any rights of ownership to the = land or=20 things found in it.=9450 The law = resisted=20 acquisition of property rights by trespass, save in cases of = prescription, on=20 the basis that the

42	[1972] IR=20 241.

43	[1988] IR=20 353 at 362 (Blayney J).

44	Ibid.=20 at 364.

45	Ibid,=20 at 364=965.

46	Ibid.,=20 at 364.

47	Ibid.=20 at 379.

48	[1982] 1=20 All ER 834.

49	[1988] IR=20 353 at 378.

50	Ibid.,=20 at = 379.

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common good must be protected from unlawful invasions of that = right.51

4.60

Finlay CJ was satisfied that the conveyances had been effective in=20 transferring ownership in the hoard to the State; he went on to point = out that=20 the State's right was subject only to the claims of the =93true owner=94 = or his=20 successor in title, the true owner being the person who owned and was = entitled=20 to possession of the objects at the time they were concealed in the=20 ground.

4.61

The plaintiffs submitted that the State could not assert ownership on = the=20 basis of any prerogative in treasure trove, as this was not a part of = the law of=20 Ireland; in the alternative, they argued that they were entitled to a = reward as=20 finders of treasure trove and on the basis of a legitimate expectation = arising=20 out of the assurance that they would be honourably treated. The State = argued=20 that the prerogative in treasure trove was a royalty or franchise and as = such=20 had been vested in the Irish Free State by Article 2 of the Free State=20 Constitution. That being so, it had become vested in the People under = Article=20 49.1 of the 1937 Constitution. The alternative ground asserted by the = State was=20 that the prerogative, as part of a general right of bona = vacantia, was an=20 inherent attribute of a sovereign State. Since the State is declared to = be a=20 sovereign State under Article 5 of the Constitution, it followed that it = was=20 entitled to the prerogative of treasure trove.

4.62

Finlay CJ agreed with the trial judge that no royal prerogative had = survived=20 enactment of the 1922 Constitution,52 = rejecting the=20 argument that it was possible to distinguish between the prerogative of = immunity=20 from suit, on which the Byme decision was based and which related = to the=20 royal dignity of the King, and that to treasure trove, which related to = his=20 position as sovereign or ruler.

4.63

Article 10.1 of the Constitution, which confers on the State = ownership of=20 =93all royalties and franchises=94 subject to all estates and interests = therein=20 lawfully vested in any person or body, was construed by Finlay CJ as = including=20 antiquities of importance which had no known owner. It would now be = generally=20 accepted in most modern States that such objects were =93one of the most = important=20 national assets belonging to the people=94 and that it would be = inconsistent with=20 the interests sought to be protected by the Constitution that such = objects=20 should become the exclusive property of those who happened upon = them.53 The = State's=20 rights in treasure trove could therefore be upheld as part of a larger = bundle=20 of

While=20 Finlay CJ was of the view that it was immaterial to the = question of=20 acquisition of rights of ownership that the trespass was = only=20 minimal, the extent of the trespass was relevant on the = issue of=20 whether a reward would be paid: =93I do not consider that = the extent=20 and the nature of the trespass in this case, having regard = in=20 particular to the subsequent conduct of the plaintiffs with = regard=20 to the hoard, could or should, as a matter or public policy, = disentitle them to a reasonable reward=94: [1988] IR 353 at=20 385=966.

The Court's=20 wisdom in so finding has been questioned; its = =93unrealistically=20 literal interpretation=94 of Byme v. Ireland in = relation to the=20 fate of prerogative powers has been criticised as leaving = future=20 courts =93... with an unwelcome choice. They are forced to = decide=20 whether to reject a socially-useful right (as the High Court = did in=20 Webb) or to devise some ad hoc basis on which to = rehabilitate a=20 former prerogative. The outcome of such a choice is unlikely = to=20 afford a consistent, predictable legal framework=94: D Gwynn = Morgan,=20 Constitutional Interpretation: Three Cautionary Tales = (1988)=20 10 DULJ 24 at 34. See also JM Kelly, Hidden Treasure and = the=20 Constitution (1988) 10 DULJ = 5.

53	[1988] IR=20 353 at = 383.

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rights incident upon State sovereignty.

4.64

The views of the majority as expressed by the Chief Justice do not go = so far=20 as to establish that this right in treasure trove may, as a result of = the=20 Court's interpretation of Articles 5 and 10, now be applied outward to = all=20 objects of archaeological significance. It is submitted that even if the = Chief=20 Justice had purported to extend such a right, this would have = constituted=20 obiter dicta, not being relevant on the facts of the case. Indeed = it is=20 unclear whether the objects at issue were in fact treasure trove, this = not being=20 the basis on which ownership was found to vest in the State nor applied = to the=20 question of entitlement to a reward.54 Thus, = while the=20 right to treasure trove was asserted by the State and while the Chief = Justice=20 found that such a right =96 albeit having a different basis to that = argued by the=20 State =96 did exist, this was not material to the outcome nor was any = view given=20 as to whether these particular objects so constituted. He did comment = that=20 nothing in his judgment relating to the right of the State to treasure = trove=20 should be interpreted as precluding the enlargement of such right by=20 legislation.⁵⁵=20 It would appear beyond dispute, therefore, that pending such legislation = and=20 despite the reference to a broad Constitutional basis for State = ownership, such=20 claims by the State remained, following the judgment, dependent upon the = enactment of appropriate legislation.

4.65

By contrast, Walsh J, who dissented on a number of points, was of the = opinion=20 that while the Court could not indicate to the Oireachtas how rights = over such=20 objects should be exercised, it was, nevertheless, the duty of = the Court=20 to state that =93pending any such legislation the State is entitled to = possession=20 of all such objects unless and until the true successors in title of = those who=20 hid them for safe keeping can be ascertained=94.56 This = view of=20 legislation as being required to regulate the exercise of a right = already=20 in existence rather than to bring it into existence differs markedly = from that=20 of Finlay CJ. By urging the Oireachtas to enact legislation which would = dispense=20 with distinctions between treasure trove and other objects and between = those=20 which had been abandoned and those which were concealed for safe = keeping, the=20 Chief Justice appears to have been of the view that abolishing such = distinctions=20 would constitute the coming into being of new rights, the creation of = which=20 required legislation.

4.66

It would appear, then, that the interpretation of the Constitution = given by=20 the majority in this case was merely aspirational and was intended as a = guide=20 for future legislative action. The dicta of Finlay CJ and Walsh J = have=20 been cited with approval in subsequent cases,57 but a = case has=20 yet to arise in which the precise ambit of the decision is considered in = detail.=20 A narrow interpretation of its scope leads one to the view that it = merely places=20 the prerogative in treasure trove on a Constitutional base, but does = not,=20 without more, extend the range of

54	It was=20 emphasised that it was unnecessary, in deciding the issue of = entitlement to a reward, to look any further than the = assurances=20 that the plaintiffs would be honourably treated: per Finlay = CJ at=20 385.

55	Ibid.,=20 at 386.

56	Ibid.,=20 at 393.

57	See, for=20 example, In the Matter of the Sailing Vessels =93La = Lavia=94,=20 =93Juliana=94 and =93Santa Maria de la Vision=94, High = Court, July 26,=20 1994, pp.102=963 (Barr=20 J).

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objects to which the right attaches. The alternative view, that it is = declaratory of a Constitutional right in the State to all objects of=20 archaeological interest found in the State whose original owner or that = person's=20 successor in title can not be found, is not supported by the particular=20 circumstances in which that interpretation was given, nor does it appear = to have=20 been the view of those later involved in drafting the 1994 = legislation.

4.67

We are of the view that State ownership of archaeological material is = an=20 acceptable intrusion into the rights of individuals both as a matter of=20 principle and under the terms of the Constitution;58 = however, we=20 believe that the Webb decision admits only of a narrow = interpretation.=20 Any intrusion which goes beyond the narrow range of treasure trove = objects=20 covered by the common law59 must be = based in=20 either a legislative provision or a conclusive judicial interpretation = of the=20 Constitution. The question then arises whether the Oireachtas, in = purporting to=20 implement the Supreme Court's views, successfully vested ownership in = the State=20 of archaeological objects as against all but the original owners or = their=20 successors in title; if so, those common law rules on which a landowner = might=20 formerly have relied have been rendered inapplicable.

2. Implementation of the Webb decision =96 the National = Monuments Act,=20 1994

4.68

Section 2 of the National Monuments Act, 1994 vests in the = State=20 ownership of all archaeological objects found in the State after the = coming into=20 effect of the Act which have no known owner, owner being defined = as =93the=20 person for the time being having such estate or interest in the = archaeological=20 object as entitles him to actual possession thereof=94.60

4.69

Section 9 obliges the Director of the National Museum, to whom the = finding=20 has been reported, to take possession of the object; he may then retain = it on=20 behalf of the State. The section does not apply where the Director is = satisfied=20 that the object is not of sufficient archaeological or historical = interest to=20 justify its retention.61 If the = object is=20 retained, the Director may, after consultation with the Minister = for=20 Arts, Culture and the Gaeltacht and the Minister for Finance and with = their=20 consent, pay a reward to each or any of the following: the finder, the = owner or=20 the occupier of the land on or under which the object was found.62

4.70

Objects found after the coming into effect of the 1930 Act and before = the=20 1994 Act are subject to less far-reaching claims by the State; there is = a=20 duty

58	Article=20 43.2 permits the State to delimit the exercise of such = rights =93with=20 a view to reconciling their exercise with the exigencies of = the=20 common good=94.

=93[T]here=20 does exist in the State a right or prerogative of treasure = trove,=20 the characteristics of which are the characteristics of = the=20 prerogative of treasure trove at common law... [which] = included=20 the practice or rewarding a diligent and honest finder who = revealed=20 his find...=94 [1988] IR 353 at 383=964, per Finlay CJ = (emphasis=20 supplied).

60	1994 Act,=20 section 4(2).

61	National=20 Monuments Act, 1994, section = 9(2).

62	1994 Act,=20 section = 10(1).

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to report them, and penalties for failing to do so, but the State = makes no=20 claim to ownership of them under the Act. The penalties do not include=20 forfeiture, which may have been omitted because it was thought to be = overly=20 disruptive of long standing possession and would constitute retroactive=20 application of the legislation. In the case of objects found after = commencement=20 of the 1994 Act, forfeiture provisions are also omitted, presumably = because they=20 were thought to be unnecessary given that the objects are deemed under = the Act=20 to be the property of the State. In the event, however, that a landowner = in a=20 future case is successful in challenging the 1994 Act and asserts title = superior=20 to that of the State, compulsory purchase provisions together with an=20 entitlement to compensation (as distinct from a reward) would represent = an=20 alternative means of achieving State ownership.

4.71

It is significant that =93owner=94 in the Act is defined in terms of = a right to=20 possession. If we understand possession as an intention to control = together with=20 de facto control, a landowner may constitute a =93known owner=94, = thereby=20 defeating the purpose of the Act and leaving in place the common law on = this=20 point. The clear intention of the legislature in enacting the 1994 Act = was=20 to

=93give statutory expression to the central call of the Supreme = Court to=20 legislate for the ownership of treasure trove to take greater = cognisance=20 of the State's continuing obligation to protect and preserve the = heritage=20 of the people, as represented by all antiquities of importance and = not=20 just treasure trove, and to take on board the court's suggestions, = in the=20 interest of common justice, to expressly provide for the payment = of a=20 reward to persons reporting the finding of such objects.=9463

4.72

Common law rules as to ownership of objects found in land also = continue to be=20 relevant in resolving disputes where found objects constitute = =93cultural objects=94=20 but not =93archaeological objects=94, as these are beyond the remit of = the 1994=20 Act.⁶⁴=20 Questions of ownership may arise in such cases between landowners and=20 finders.

3. Ownership as between landowners and the State: the impact = of the=20 National Monuments Act, 1994

4.73

In view of the form of words used in section 2 of the 1994 Act, there = is some=20 confusion as to whether the Act has succeeded in vesting outright = ownership in=20 the State against all but the original owner, or whether the State's = right=20 continues to be exercisable only within pre-existing common law limits. = On one=20 interpretation, the 1994 Act merely extends the existing right of the = State in=20 treasure trove to all archaeological objects, as defined in the Act; on = another=20 it confers a new right on the State to which common law limits do not = apply.=20 The

63	Minister=20 for Arts, Culture and the Gaeltacht, Mr M Higgins, Dail = Debates, 24=20 March 1994, Vol 440, Col 1337.

64	It has=20 already been pointed out that the likelihood that cultural = objects=20 recovered from underneath the land would not also constitute = archaeological objects is=20 = remote.

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fact that the issue of a landowner's ownership rights in chattels = found in or=20 on his land was not expressly addressed in the Act would appear to leave = the way=20 open for a claim by a landowner that in the absence of a clearly worded=20 statutory provision to the contrary, he or she, and not the State, is = the owner=20 of such objects provided that he or she satisfies the common law = criteria for=20 ownership.

4.74

The distinction at common law between objects which have been hidden = for=20 safe-keeping and those which have been abandoned by their owners would, = if this=20 were accepted, still apply. This would necessitate the adducing of=20 archaeological evidence to establish the circumstances in which the = objects came=20 to be in their present location. Whether the objects are made = substantially of=20 gold or silver may continue to be of relevance where the objects in = question=20 were found prior to the 1994 Act. Despite the commonly held view that = confining=20 treasure trove to objects of gold and silver is anachronistic in an age = where=20 the historical and archaeological, rather than the intrinsic value is of = significance, the Supreme Court in Webb did not so redefine but = urged the=20 Oireachtas⁶⁵ to=20 do so.⁶⁶ Kelly=20 comments that the Court could legitimately have done so, given that = =93judicial=20 law-shaping no less bold is no rarity=94 in Ireland.67

4.75

There is a presumption, when interpreting statutes, against unclear = changes=20 in the law, the effect of which is that a change must be achieved = unambiguously,=20 either expressly or by clear implication. Where there is an ambiguity, = the=20 courts must lean against an interpretation which finds that the = provision at=20 issue changes the law.68 Given = that the=20 definition of =93owner=94 in the 1994 Act is framed in terms of a right = to=20 possession, the common law criteria as to ownership are not expressly=20 overridden. It would appear, therefore, that a lacuna exists in = the 1994=20 Act.⁶⁹

4.76

Thus, while the Constitution permits the State to limit property = rights =93with=20 a view to reconciling their exercise with the exigencies of the common = good=94 in=20 Article 43.2.2, it is arguable that such limitation, whether or not it = was=20 intended to be permissible, was not achieved in the 1994 Act. The = liberal=20 definition of =93owner=94 in the Act does not, it is submitted, make = sufficiently=20 clear that those who come into possession of such objects, simply by = virtue of=20 owning land on which such objects happen to be found, are not = =93owners=94 for the=20 purposes of the Act.

65	The 1994=20 Act redefines archaeological objects, omitting the exclusion = of=20 treasure trove which was contained in the definition of such = objects=20 in the 1930 Act.

66	See, for=20 example, Kelly, JM Hidden Treasure and the = Constitution,=20 (1988) 10 DULJ 5.

67	Ibid.,=20 p. 16.

68	Byrne, R=20 and McCutcheon, P, The Irish Legal System (3rd ed., = 1996),=20 para. 14.56.

69	Lyall=20 points out that =93in the common law a better right to = possession=20 is ownership as against those with a lesser right=94: = Lyall, A=20 Land Law in Ireland (Oak Tree Press, 1996), = pp.21=9622,=20 = n.2..

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4. Conclusion

4.77

In the early part of this Chapter, we set out the elements of larceny = which=20 must be satisfied in order to invoke Chapter II. An object must, first = of all,=20 have an owner as defined in the Larceny Act, 1916; it must be = something=20 which the Act regards as capable of being stolen; and it must have been = taken=20 without the owner's consent. In the case of a typical theft, such = absence of=20 consent will generally be easy to prove as the theft will have been = accompanied=20 by a breaking and entering or similar indication that the taking was = without=20 consent.

4.78

In the specific case of excavations, we first had to establish that = objects=20 yielded by them were not excluded from the scope of larceny by virtue of = their=20 association with the land. Secondly, the fact that such excavations are = unlikely=20 to have been witnessed makes it difficult to determine the identity of = the owner=20 whose consent is required, and therefore whether or not consent was = secured.=20 Given that in Ireland the owner is the State, this difficulty is = avoided.

4.79

Should a question arise as to whether the State does in fact own = particular=20 objects, resort may be had to the fact that such objects are usually the = product=20 of trespassory excavations so that some degree of illegality will attach = to=20 their excavation and retention; this would allow them to be dealt with = as stolen=20 regardless of the final determination of claims as between the = landowner, the=20 finder and the State.

4.80

The views expressed in the Webb case vis =E0 vis State = ownership=20 of archaeological material represent a broadly accepted view that = individual=20 property rights in material of national importance may be intruded upon = in=20 certain instances in order to vindicate a =93common good=94. There is no = Constitutional obstacle in the way of the legislature in conferring a = power on=20 the State to so intrude, given the provisions of Article 43. The law as = to the=20 precise extent to which such intrusion may currently take place remains = unclear=20 because firstly, that part of the Webb decision dealing with this = question is aspirational, and secondly, the legislation which sought to=20 implement those aspirations may have been only partially effective in = doing=20 so.

4.81

It is recommended that the lack of clarity as to the precise = balance=20 between State and private ownership, which exists as a result of the = combined=20 effect of the Webb decision and the 1994 Act, should be rectified. We = recommend=20 that a provision be enacted which states that a landowner on whose land=20 archaeological objects are found does not constitute an =93owner=94 for = the purposes=20 of the 1994 Act unless he is the original owner of the object or that = person's=20 successor in title.

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CHAPTER 5: EXPORT RESTRICTIONS ON CULTURAL PROPERTY IN IRISH = LAW

5.1

The operation and usefulness of Part III of the Convention depends = upon=20 export regulation in the domestic law of Contracting States. The = Convention does=20 not purport to direct States as to the classes of cultural object to = which=20 restrictions should apply. Rather, it allows States to invoke the return = procedures provided in the Convention when domestic provisions = protecting=20 certain classes of object have been violated. Unlike Chapter II of the=20 Convention, proceedings under Chapter III may be brought only by = Contracting=20 States.

The National Cultural Institutions Act, 1997

5.2

Irish law has been significantly modified in this regard by the = enactment of=20 the National Cultural Institutions Act, 1997 (the =931997 Act=94) = which=20 imposes export restrictions upon archaeological objects, cultural = objects and=20 certain kinds of paintings and documents. The Act significantly extends = the=20 regime which existed heretofore, enumerating for the first time in Irish = law a=20 class of objects which are =93cultural objects=94. Section 49 of the Act = provides=20 that certain types of documents and paintings,1 cultural = objects=20 entered on the register established under the Act,2 = archaeological=20 objects³ and=20 objects specified in the Third Schedule4 which = are worth=20 not less than =A335,000 and are not less than 70 years old require a = licence.

5.3

The precise scope of the export requirement will be laid down in = secondary=20 legislation, under the power conferred on the Minister to declare by = order any=20 object which is, in his or her opinion, either a document of natural,=20 historical, genealogical or literary interest, or an archaeological = object, to=20 be an object to which the licence requirement applies.5 Any = cultural=20 objects which belong to a class of cultural objects designated by the = Minister=20 may also be

1	The=20 Documents and Pictures (Regulation of Export) Act, = 1945 is=20 repealed by section 6 of the 1997 = Act.

Section 48=20 requires the Minister to =93establish and maintain a = register of=20 cultural objects of a class or classes denoted in such = manner=20 (including by reference to monetary value) as may be = determined by=20 the Minister whose export from the State would constitute a = serious=20 loss to the heritage of = Ireland=94.

3	Regulation=20 of export of archaeological objects was formerly provided in = section=20 24 of the National Monuments Act, 1930 which is = repealed by=20 section 6 of the 1997 Act.

4	The list=20 includes toys, games, furniture, glassware, musical = instruments,=20 tapestries, carpets and = pottery.

5	Section=20 49(2) and (3). The Minister may also =93declassify=94 = objects, so that=20 while they fall within the scope of the section they may be = exempted=20 from the licence requirement: section=20 = 49(4).

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subjected to the licence requirement.6 = According to the=20 Department of Arts, Heritage, the Gaeltacht and the Islands such = orders=20 will be made prior to commencement of these sections of the Act so that = the=20 range of objects in respect of which a licence must be procured will be=20 ascertainable from the outset. Failure to secure a licence is punishable = by a=20 maximum of 2 years imprisonment and/or a fine of =A350,000. The severity = of these=20 penalties indicates an acknowledgement of the seriousness of the = offences, and=20 is in sharp contrast to those provided in earlier legislation.7

5.4

Cultural objects also comprise

=93museum heritage objects, library material8 = and any=20 other object or thing considered appropriate to be exhibited or = kept by an=20 institution specified in the Second Schedule.=949

5.5

Museum heritage objects consist of objects in the collection of the = National=20 Museum of Ireland at a date appointed by the Minister (=93establishment = day=94), any=20 object (including archaeological objects, decorative art objects, = objects=20 relating to natural science, history, industry or folklife) over 25 = years old=20 and considered appropriate for inclusion in the National Museum's = collection=20 relating to Irish life, history and international relations, and any = =93other=20 similar object=94.10 = Procedures for=20 consultation with the appropriate cultural institutions will be = specified in=20 secondary legislation.

5.6

The range of objects now requiring an export licence in Irish law is = in some=20 respects more extensive than those defined as =93cultural objects=94 in = the=20 Convention, for example the Convention definition includes furniture = over 100=20 years old, while the Act requires a minimum age of only 70 years; on the = other=20 hand the Convention applies no age limit to =93artistic material=94 = while the Act=20 requires licences only for those paintings which are over 25 years above = a value=20 to be decided by the Minister. The objects most likely to become the = subject of=20 a claim for return may be divided into two groups =96 those of national=20 importance

6	Section=20 49(1)(g).

The=20 Documents and Pictures (Regulation of Export) Act, = 1945 made=20 it unlawful to export certain objects without a licence, but = did not=20 provide any penalties for breach, while the National = Monuments=20 Act, 1930 provided a maximum fine of =A350 and/or 6 = months=20 imprisonment for breach of its provisions requiring export = licences=20 for archaeological objects.

Library=20 material is defined in section 2 of the Act as (a) any = material in=20 the collection of the National Library of Ireland on = establishment=20 day, (b) any manuscript, book (within the meaning of section = 56(6)=20 of the Copyright Act, 1963), or material (defined in = section=20 65 of the 1997 Act as including any engraving, photograph, = play=20 script, record etc.) concerning human life in Ireland, the = natural=20 history of Ireland and of the relations of Ireland with = other=20 countries, considered appropriate for inclusion in the = National=20 Library's collection, (c) any library material passed from = the care=20 of the Ulster Office-in-Arms to that of the Genealogical = Office on=20 April 1, 1943, and (d) any similar = material.

The=20 institutions designated in the Second Schedule are: = the=20 Chester Beatty Library, Crawford Library, Hugh Lane = Municipal=20 Gallery, Irish Museum of Modern Art, National Museum of = Ireland,=20 National Library of Ireland, National Gallery of Ireland, = Hunt=20 Museum, Limerick and the Royal Irish Academy. Institutions = which=20 satisfy the criteria laid down in section 45(2) of the Act = may be=20 designated as cultural institutions by order of the = Minister; among=20 the criteria are that one of its principal functions is the=20 preservation of cultural objects for the benefit of the = public, it=20 is owned or funded wholly or substantially by the State or = by a=20 public or local authority and maintains and controls a = collection of=20 national or international = significance.

10	National=20 Cultural Institutions Act, 1997, section=20 2.

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for archaeology and history, or those antiquities which are of = significant=20 monetary value on the international art market. The former are likely to = qualify=20 as =93archaeological objects=94 for which an export licence is required = regardless=20 of age or monetary value. Export of antiquities, on the other hand, = which would=20 include, for example, objects of furniture and silverware procured = through=20 thefts from public or private collections, may not be satisfactorily = regulated.=20 While they are included within the list of decorative art objects in the = Third=20 Schedule provided they are not less than 70 years old and worth not less = than=20 =A335,000, section 49(1)(f) also requires that such objects are =93made = in Ireland=94.=20 Given our colonial history it is likely that many such objects were in = fact=20 imported into the country by wealthy landowners in the centuries prior = to=20 independence. It may have been more logical to include an alternative = provision=20 to the effect that objects which have been in the country for a given = period of=20 time would also qualify. It is somewhat curious that this alternative = has been=20 omitted in the case of decorative art objects but included in the case = of=20 paintings.

5.7

If an object fails to meet the criteria laid down in section 49(1)(f) = it may,=20 nevertheless, constitute an object =93similar to=94 those considered = appropriate for=20 inclusion in the collection of the National Museum =96=93museum heritage = objects=94,=20 which fall within the definition of cultural objects. Much of the scope = of this=20 part of the Act will depend on the extent to which the ministerial power = to=20 declare classes of cultural object to be subject to the licence = requirement is=20 exercised, since cultural objects per se are not automatically = included;=20 they must either be entered on the register or be part of a class = designated by=20 the Minister.

5.8

The Minister has varying degrees of discretion to grant or refuse a = licence,=20 depending on the nature of the object; if it is an archaeological = object,11 for = example, he=20 or she has unlimited discretion. If it is a cultural object,12 on the = other=20 hand, the Minister is compelled to grant a licence unless the object has = been in=20 the care of a cultural institution for a specified period of time, in = which case=20 the Minister may grant or refuse a licence.

5.9

While the 1997 Act repeals that part of the 1930 Act which regulated = export=20 of archaeological objects, it leaves unchanged the provisions of section = 14 of=20 that Act, which contains an absolute prohibition upon the export of = national=20 monuments of which the Commissioners of Public Works or a local = authority are=20 the owners or guardians or in respect of which a preservation order is = in force.=20 A national monument is defined therein as a:

=93monument or the remains of a monument the preservation of = which is a=20 matter of national importance by reason of the historical, = architectural,=20 traditional, artistic or archaeological interest attaching thereto = ...=94.

5.10

A monument is described as:

11	Section=20 49(3).

12	Section=20 = 49(2).

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PAGE = NUMBER=3D87=20

=93any artificial or partly artificial building, structure, or = erection=20 whether above or below the surface of the ground and whether = affixed or=20 not affixed to the ground and any cave, stone, or other natural = product=20 whether forming part of or attached to or not attached to the = ground which=20 has been artificially carved, sculptured or worked upon or which = (where it=20 does not form part of the ground) appears to have been purposely = put or=20 arranged in position and any prehistoric or ancient tomb, grave or = burial=20 deposit, but does not include any building which is for the time = being=20 habitually used for ecclesiastical = purposes.=94

5.11

The penalties for breach of this provision are negligible by today's=20 standards¹³ and=20 given the fact that the penalties for illicitly dealing with = archaeological=20 objects have been increased substantially under the 1994 Act14 it is = anomalous=20 that similar increases have not been provided for national monuments = also.

Return of objects illegally exported from Ireland to another EU = Member=20 State

5.12

Articles 30=9635 of the Treaty of Rome enshrine the fundamental = principle of=20 the free movement of goods; central to this freedom of movement is the=20 prohibition of quantitative restrictions on exports and imports = originating in=20 the Member States and all measures having equivalent effect. Article 36, = however, reserves to Member States the authority to apply reasonable = non-tariff=20 trade barriers between Member States in derogation of the requirements = of=20 Articles 30=9635 when justified on the grounds of, among several other=20 non-economic grounds, protecting =93national treasures possessing = artistic,=20 historic or archaeological value=94.

5.13

The legislative scheme for the establishment of the internal market = contained=20 in the Single European Act did not interfere with the rights of Member = States as=20 set out in Article 36 to adopt measures for the protection of national=20 treasures. The very establishment of the internal market did, however,=20 fundamentally affect the powers of the Member States to enforce = their=20 domestic export measures on cultural objects within the territorial = confines of=20 the European Communities: as of 1st January 1993, customs checks at the = internal=20 frontiers were abolished and replaced only by a system of checks at the = external=20 frontiers of the Community. Consequently, customs administrations at the = internal frontiers no longer play any role in ensuring that cultural = goods which=20 qualify as national treasures under the relevant export regulations do = not leave=20 a Member State in violation of that Member State's export control = laws.

13	A = fine of=20 =A350 and/or imprisonment for up to six months: 1930 Act, = section=20 14(4).

For=20 example, archaeological objects found in the State after the = coming=20 into operation of the 1930 Act must be reported to the = Director of=20 the National Museum within three months of the coming into = operation=20 of section 5 of the 1994 Act. The maximum penalty for breach = is=20 =A350,000 and/or 5 years imprisonment: 1994 Act, section=20 = 13.

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Council Regulation 3911/92 and Directive 93/7

5.14

The Council of the European Communities, recognising the vulnerable = position=20 in which Member States were placed in the light of the completion of the = internal market, responded with the enactment of Regulation 3911/92 = on the=20 Export of Cultural Goods and Directive 7/93 on the Return of Cultural = Objects=20 unlawfully removed from the Territory of a Member State.

5.15

In the Preamble to Regulation 3911/92, the Council of the EC = states=20 that =93in view of the completion of the internal market, rules on trade = with=20 third countries are needed for the protection of cultural goods=94 and = adverts to=20 the need to =93ensure that exports of cultural goods are subject to = uniform=20 controls at the Community's external borders=94. Although all of the = Member States=20 have introduced legal measures by virtue of which the export of cultural = objects=20 is regulated, the stringency of those measures varies greatly from one = Member=20 State to another. Consequently, the Council proposed to raise the level = of=20 protection afforded in the event of export from all Member States to a = third=20 country to a common minimum level. It proposed to achieve this end by = the=20 introduction of an export licence requirement at the external frontiers = of the=20 EC.¹⁵

5.16

An object falling within one of the categories set out in the Annex = to

The=20 following goods require an export licence under Regulation=20 3911/92:

1.	Archaeological=20 objects more than 100 years old which are the = products=20 of:

=96	excavations=20 and finds on land or under = water

=96	archaeological=20 sites

=96	archaeological=20 collections

2.	Elements=20 forming an integral part of artistic, historical = or=20 religious monuments which have been dismembered, = of an=20 age exceeding 100 = years.

3.	Pictures=20 and paintings executed entirely by hand, on any = medium=20 and in any material, which are more than 50 = years old=20 and do not belong to their=20 originators.

4.	Mosaics=20 other than those in categories 1 or 2 and = drawings=20 executed entirely by hand, on any medium and in = any=20 material, which are more than 50 years old and = do not=20 belong to their = originators.

5.	Original=20 engravings, prints, serigraphs and lithographs = with=20 their respective plates and original posters = which are=20 more than 50 years old and do not belong to = their=20 originators.

6.	Original=20 sculptures or statuary and copies produced by = the same=20 process as the original, which are more than 50 = years=20 old and do not belong to their originators, = other than=20 those in category = 1.

7.	Photographs,=20 films and negative = thereof.

8.	Incunabula=20 and manuscripts, including maps and musical = scores,=20 singly or in collection which are more than 50 = years old=20 and do not belong to their=20 originators.

9.	Books=20 more than 100 years old, singly on in=20 collections.

10.	Printed=20 maps more than 200 years = old.

11.	Archives=20 and any elements thereof of any kind, on any = medium,=20 which are more than 50 years=20 old.

12.	(a)=20 Collections and specimens from zoological, = botanical,=20 mineralogical or anatomical collections; (b) = Collections=20 of historical, palaeotological, ethnographic or=20 numismatic = interest.

13.	Means=20 of transport more than 75 years=20 old.

14.	Any=20 other antique item not included in categories A1 = to A13,=20 more than 50 years = old.

B.	Financial=20 thresholds applicable to certain categories = under A (in=20 ecus)

VALUE:=20 0 (Zero)1 (Archaeological objects), 2 = (Dismembered=20 monuments) 8 (Incunabula and manuscripts) 11=20 (Archives)

15,000=20 4 (Mosaics and drawings) 5 (Engravings) 7 = (Photographs)=20 10 (Printed=20 = maps)

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Regulation 3911/92 and consequently representing a =93cultural = good=94 for=20 such purposes must be accompanied, upon its export outside of the = territorial=20 boundaries of the EC, by an export licence. The designated =93competent = authority=94=20 in each Member State may refuse to grant such an export licence if the = cultural=20 goods in question are the subject of legislation protecting national = treasures=20 of artistic, historical or archaeological value in the Member States = concerned.=20 The regulation does not specify the nature of the protection afforded by = the=20 legislation to which the national treasure is subject. Thus, if a = liberal=20 interpretation of the Regulation is adopted, it appears that legislation = which=20 deals in any way with the protection of cultural goods and not=20 necessarily only that which deals with export control may form the basis = of the=20 authority's refusal to grant a licence.

5.17

Member States have competence to refuse to grant an export licence = where the=20 object is covered by domestic legislation relating to national = treasures. The=20 effect of this discretion in an Irish context is, for example, that the = existing=20 ban on export of national monuments under the 1930 Act may continue to = be=20 enforced notwithstanding the Regulation; similarly, ministerial = discretion=20 conferred under the 1997 Act to grant or refuse export licences for = certain=20 cultural objects will be unaffected by the provisions of the Regulation. = The=20 effect of Article 2 is to provide a community-wide standard regarding = export=20 regulation, regardless of whether Member States have regulated export = under=20 domestic law, while allowing Member States which have so regulated to = rely on=20 such domestic provisions to retain objects which have been identified in = its law=20 as national treasures.

5.18

Domestic law may enlarge or limit the level of control laid down in = the=20 Regulation. Objects possessing artistic, historic or archaeological = value which=20 do not fall within the definition of =93cultural good=94 as listed in = the Regulation=20 shall, under Article 4, be exported only in accordance with the national = export=20 provisions of the Member State of export. Differences in the levels of=20 protection afforded by individual Member States may, therefore, result = in=20 different outcomes. For example, archaeological objects less than 100 = years old=20 fall outside the Regulation but within a class requiring an export = licence under=20 Irish law.¹⁶ If=20 similar objects were exported from another Member State with a similar = age=20 threshold to that in the Regulation, however, their export beyond the = territory=20 of the EU could proceed without a licence. It is therefore up to the = Member=20 States themselves to decide the appropriate level of protection, whether = greater=20 or lesser than that in the Regulation, for those classes of object which = fall=20 outside its framework. Objects falling outside both the Regulation and = the=20 domestic law of the State in which they are located may be exported = beyond the=20 Community without restriction.

5.19

Finally, the Regulation confers discretion on Member States in = respect of=20 archaeological objects more than 100 years old which are the product = of

16	National=20 Cultural Institutions Act, 1997, section 48(e) imposes no = age=20 requirement on archaeological=20 = objects.

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excavations and finds on land or under water or from archaeological = sites. A=20 Member State may decide not to require a licence for such objects where = they are=20 of =93limited archaeological or scientific interest=94and are not = the =93direct=20 product of excavations, finds and archaeological sites within a Member = State=94.=20 The converse of this provision is that archaeological objects of limited = interest must have a licence where they derive directly from an = excavation, find=20 or site. While archaeological objects are not defined in the Regulation, = they=20 are, of course, defined in Irish law which bases protection on = archaeological or=20 historic significance. Arguably, under Irish law objects which are =93of = limited=20 interest=94 do not constitute =93archaeological objects=93 making this = part of Article=20 2 irrelevant for Irish purposes.

5.20

In summary, the nature of the interplay between Irish law, the = Regulation and=20 Directive and the Convention varies according to the extent to which the = respective supra-national regimes defer to domestic law in particular = instances.=20 While the Convention relies wholly on domestic export law, the = Regulation does=20 so only in respect of limited categories of object. The Regulation sets = out a=20 Community norm from which Member States may depart only in the case of = national=20 treasures =96 by refusing to grant a licence =96 and certain = archaeological objects=20 =96 by not requiring a licence. The Directive does not confer a general = right to=20 return in respect of all of the objects covered by the = Regulation, but=20 only of those cultural objects which are a) exported contrary to either = the=20 Regulation or domestic law or which are not returned at the end of a = period of=20 lawful removal and b) classified as national treasures under national = law and c)=20 belong to one of the categories listed in the Annex to the Directive = (some of=20 which are included only if their monetary value satisfies the financial=20 threshold in the Directive17) or = derive from=20 public collections or the inventories of ecclesiastical = institutions.

5.21

The precise nature of the =93classification=94 required under = domestic law to=20 place objects within the scope of Article 1(1) of the Directive is = unclear. The=20 1994 Regulations implementing the Directive are silent on this point, = merely=20 stating that unless the contrary intention appears, words and = expressions have=20 the same meaning as in the Directive. While no specific reference is = made to=20 which body of domestic legislation is guiding on the question of whether = objects=20 are =93national treasures=94, the 1997 Act comprehensively deals with = cultural=20 material and serves to conform the categories of object protected in = Irish law=20 with those in the Directive and Regulation. The broad scope of the Act = means=20 that objects which attract export regulation under Irish law do not = necessarily=20 come within the scope of the EU regime. For example, the age limits for=20 documents and paintings in the Act are lower than under the Directive, = while the=20 ministerial power to designate certain classes of object as cultural = objects may=20 further broaden the scope of the Act.

The Irish=20 currency equivalent to the financial thresholds applicable = to the=20 various categories of cultural object in the Directive are = set out=20 in the 1994 implementing Regulations (SI 182/94). Only those = pictures worth over =A3111,251 and books, statuary and means = of=20 transport worth over =A337,083 are covered. These thresholds = are the=20 same as those which trigger the licence requirement under = Regulation=20 = 3911/92.

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5.22

The relevance of these differences in practice is that the retrieval, = for=20 example, of a painting aged 30 years and valued at =A340,000 from = another Member=20 State would not be pursuable under the Directive since the threshold = therein in=20 respect of paintings is 50 years. The illegal exporter would, however, = be=20 subject to a penalty under the 1997 Act since the painting is over 25 = years old,=20 the threshold prescribed under the 1997 Act.18 On the = other=20 hand, decorative art objects under the Act (which comprise the same = range of=20 objects as are classified as =93antique items=94 under the Regulation) = are required=20 to be licensed under the Act only if they are more than 70 years old, = while=20 under the Regulation the threshold is 50 years. Thus, in the event that = the=20 return of furniture aged 60 years were sought, it would qualify under = the Annex=20 to the Regulation but would fall foul of the requirement in Article 1 of = the=20 Directive that the object be classified as a national treasure under = national=20 law. Since a licence is not required for furniture less than 70 years = old under=20 section 49(1) (b) of the 1997 Act, it cannot be regarded as = =93classified=94. It is=20 possible, however, that such material might qualify under one of the = other heads=20 in the 1997 Act, for example as a cultural object entered on the = register, or=20 one which is part of a class designated as cultural objects by the = Minister. In=20 this regard it should be noted that the Directive expressly permits of=20 classification before or after unlawful removal.

5.23

Irish export restrictions serve only to deter illicit dealings in = cultural=20 objects by imposing harsh penalties: in the event that objects not = covered by=20 the Directive are taken out of the country contrary to national law, = there is no=20 legal mechanism by which to pursue their return. If the Convention were = in=20 force, however, cultural objects regardless of monetary value would = qualify=20 under the return procedure therein. Age thresholds are imposed, but only = to a=20 limited extent; for example on certain objects such as furniture and = certain=20 antiquities (100 years) but not on property of artistic interest such as = statuary and paintings or on manuscripts or documents of =93special = interest=94. The=20 standard to be satisfied by the requesting State in each case under the=20 Convention is that the removal of the object significantly impairs any = one of a=20 number of specific interests or the object is of significant = cultural=20 importance to that State.

Return of objects illegally exported from Ireland to a non-member = State

5.24

Securing the return of an object from a non-EC Member State is a more = difficult task. In the absence of any pertinent binding international or = bilateral agreements to which Ireland is a party, the matter turns upon = the=20 approach taken by the domestic law of the State from which return is = requested=20 to the foreign export provisions which have been breached i.e., does it = regard=20 such objects as illegally imported into its own jurisdiction or, = if not,=20 will it recognise and thus give effect to the export controls which have = been=20 breached? If either of these questions is answered in the affirmative, = the=20 object can be returned to the country of export.

18	Section=20 = 49(1)(b).

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5.25

Unfortunately, an object illegally exported from one country is not=20 necessarily illegally imported into the country of its destination. = While the=20 UNESCO Convention appears to19 impose = an=20 obligation upon the States Parties thereto to treat illicit foreign = exports as=20 illegal imports in their own jurisdiction, relatively few countries = adopt this=20 approach. O'Keefe and Prott comment that:

=93[t]he contemporary near-universal imposition of export = controls on=20 cultural property has not so far been matched by the same = acceptance of=20 import regulation, although States, as a matter of international = law, have=20 an equal competence [to legislate in this sphere].=9420

5.26

A State which does not contain such import regulations may = nonetheless be=20 prepared to enforce in its courts the export regulations of the = dispossessed=20 State. The likelihood of this has traditionally been hampered by an old = rule of=20 the English common law that a court:

=93has no jurisdiction at common law to entertain an action for = the=20 enforcement, either directly or indirectly, of a penal, revenue or = [public] law of a foreign State.=9421

5.27

A similar rule in civil law jurisdictions results in the = non-enforcement of=20 =93les lois de la police et du surete=94.

5.28

In recent years, some judicial pronouncements in foreign courts have = not been=20 quite as emphatic. In Attorney-General of New Zealand v. = Ortiz,22 the New = Zealand=20 government sought to secure, via the English courts, the return from = Ortiz of a=20 number of carved Maori panels which they claimed were government = property on the=20 basis of a provision in the New Zealand Historic Articles Act. = Section=20 12(2) of the Act provided that objects exported in breach of export = regulations=20 set out in the Act were forfeited to the State. Export thereof was also = an=20 offence in respect of which a fine was payable. Staughton J., at first = instance,=20 could not find any conclusive precedents in English law against the = enforcement=20 of what was, in his opinion, a public law:

=93I can ... detect no support in the English cases for a = category of=20 foreign public law, but equally nothing of great weight against = it.=9423

5.29

On appeal, however, Lord Denning asserted that there was clearly a = rule of=20 non-enforcement which represented one aspect of the exercise of = sovereign

See Article=20 7, Convention on the Means of Prohibiting and Preventing = the=20 Illicit Import, Export and Transfer of Ownership of Cultural = Property 1970. This article has been interpreted in a = number of=20 ways, not all of which impose an obligation upon the = receiving State=20 Party to view illicit foreign exports as illicit imports in = their=20 own territories. In any event, the US, the only major = art-exporting=20 state which became party to the 1970 Convention made clear = that it=20 would not regard illicit foreign exports as illicit=20 imports.

20	O'Keefe, P=20 and Prott, L Law and the Cultural Heritage, Volume III:=20 Movement, p.588, para. = 1120.

21	Dicey and=20 Morris, Rule 22(1).

22	Attorney=20 General of New Zealand v. Ortiz [1982] 1 QB 349, [1982] = 3 WLR=20 571 (CA), [1983] 2 WLR 809 = (HL).

23	[1982] 1 QB=20 349 at = 371.

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authority. Ackner LJ categorised section 12(2) as a penal provision = and,=20 consequently, concluded that it was unenforceable in the English courts. = O'Connor LJ and all of the judges in the House of Lords decided the = issue=20 without reference to this matter. In the wake of this decision, the = enforcement=20 question remains:

=93in as much confusion as it ever was, the three judges who = did address=20 the issue holding radically different views, and the preceding = case-law=20 being inconclusive.=9424

5.30

The International Law Association's International Committee on = Transnational=20 Recognition and Enforcement of Foreign Public Laws referred to tentative = emergence of a =93more liberal approach=94 towards recognition and = enforcement of=20 foreign laws. The ILA did not, however, deny that non-enforcement = remains, as=20 yet, the dominant practice. As far as the protection of cultural objects = is=20 concerned, it is a dangerous practice which, in the words of the = Institut de=20 Droit International, is =93inappropriate for modern conditions of=20 international collaboration=93. Droz adds that:

=93Regulations relating to ... prohibitions on export ... are = found again=20 and again. A mutual refusal to take account of foreign rules for=20 protection because they are matters of public law ... can only = serve to=20 encourage the illicit international transfer of cultural property = since,=20 in such cases, immunity would be guaranteed simply by crossing a=20 frontier.=9425

The Unidroit Convention and recognition of foreign public = law

5.31

The European Community has dealt with the issue of recognition of a = foreign=20 public law by obliging the competent authority in the requested State to = order=20 return of an object once it is established that it is a =93cultural = object=94 as=20 defined in Directive 93/7 and has been unlawfully removed from the = territory of=20 the requesting State in breach of its laws protecting national treasures = or of=20 Regulation 3911/92. Similarly, the Convention obliges States which = become=20 parties to it to recognise foreign rules concerning illegal export; this = obligation is limited, however; earlier drafts contained a provision = that the=20 illegality in question was required to derive from rules enacted with = the=20 specific purpose of protecting cultural property.26 This = clause was=20 subsequently removed, but Article 1(a) achieves the same effect by = limiting the=20 application of Part III of the Convention to return of objects which = have been=20 exported contrary to export laws which have the =93purpose of protecting = [a=20 State's] cultural heritage=94.

5.32

Irish case-law contains only scant reference to the = non-enforceability of

24	O'Keefe and=20 Prott, op. cit., p.654, para. = 1260.

25	Droz, G.,=20 The International Protection of Cultural Property from = the=20 Stand-point of Private International Law, in = International=20 Legal Protection of Cultural Property (Council of = Europe, 1984)=20 p.114 at 115.

26	Unidroit=20 Explanatory Report in Acts and Proceedings of the = Diplomatic=20 Conference, p.24 para.=20 26.

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foreign public law. It appears, however, that the prevailing rule of=20 non-recognition has the force of law in this jurisdiction also; in = Buchanan=20 Ltd. v. McVey,27 Maguire = CJ, in an=20 obiter reference, asserted that it represented =93a recognised = rule=94.=20 Accession to the Convention would, therefore, represent a departure from = existing practice. No substantive changes to our existing law would be=20 necessitated by such a change, however; implementing legislation would = simply=20 oblige the Irish court to order return on proof of a breach of the = requesting=20 State's export laws and of the criteria laid down in Articles 1(a) and = 5(3).

27	[1954] IR=20 = 89.

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CHAPTER 6: THE PRESENT LAW REGARDING THE RETURN TO IRELAND OF = OBJECTS STOLEN=20 IN OR ILLEGALLY EXPORTED FROM IRELAND

6.1

In this Chapter, we consider the procedures available in Irish law = for=20 securing return of stolen or illegally exported objects. The practical = ease with=20 which potential claimants may rely on the Convention is an important = factor in=20 evaluating the extent of its utility.

A. Stolen Objects: Civil Actions by the Dispossessed Owner = Against the=20 Possessor

1. Introduction

6.2

A plaintiff's civil action must be founded in a civil wrong for which = the=20 appropriate remedy is the return of the object. Traditionally, in = Ireland and=20 other common law jurisdictions,1 recourse = is had to=20 the torts of conversion and detinue in these circumstances. Conversion = consists=20 of any act relating to another's goods which constitutes an = unjustifiable denial=20 of his or her title to them. It may be committed by the wrongful taking = of=20 possession of the goods, abusing possession already acquired or = otherwise=20 denying the other person's title. Larceny is essentially an offence = against=20 possession; the possession of a person who acquires from a thief =96 = although he=20 or she takes without knowledge of the illicit provenance thereof =96 may = nonetheless be wrongful.2 The only = available=20 remedy where the tort of conversion is established, however, is damages. = Consequently, plaintiffs should found their action in the tort of = detinue which=20 involves a wrongful refusal by the defendant to deliver up to the = plaintiff an=20 object after the plaintiff has so demanded. The plaintiff must therefore = have=20 sought its return from the party in possession of the object prior to = commencing=20 the action. A court may order both the return of the object and damages = in an=20 action founded in detinue.

6.3

Similarly, as the plaintiff's aim is to retrieve the displaced = object, he=20 or

1	In England=20 and Wales, section 2(1) of the Tort (Interference with = Goods)=20 Act, 1977, abolished the tort of detinue. An action in=20 conversion now lies in England and Wales in every case in = which an=20 action in detinue lay before its abolition; per = section=20 1(a).

2	=93An honest=20 but mistaken belief of the defendant that he has the right = to deal=20 with the goods generally does not excuse him=94 per McMahon, = B. and=20 Binchy, W., The Irish Law of Torts (Butterworths, 2nd = ed.,=20 1990), = p.537.

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she must join as defendant to the action the party from whom return = can be=20 secured. Thus, as thieves of cultural objects tend to pass the stolen = object on=20 to third parties as soon as they possibly can, the plaintiff must pursue = that=20 third party =96 whether or not bona fide and without knowledge of = its=20 illicit history =96 in the courts.

6.4

A person who wishes to secure the return to Ireland of a stolen = cultural=20 object must, as a preliminary step, address a number of matters of = private=20 international law. It does not follow from the fact that the object is = located=20 in a particular jurisdiction that the courts of that jurisdiction will=20 necessarily deal with the issue of title in the object, nor that the = laws of=20 that jurisdiction will be applied. Thus, it must be determined initially = whether=20 authority to decide the issue is vested in Irish or in foreign courts. = Having=20 addressed that question, the court to which competence to hear the issue = has=20 been assigned must then decide, in accordance with its own rules of = private=20 international law, whether its internal laws or those of another State = will=20 govern the decision to return the object. It should be noted that the = fact that=20 the epithet =93cultural=94 attaches to the object in question does not = in any way=20 affect the rules governing its restitution or return.

2. Jurisdiction

6.5

In providing that a claim for restitution or return may be brought in = the=20 State where the object is located, the Convention provides a novel = ground of=20 jurisdiction not provided in any of the existing codifications of = jurisdictional=20 rules such as the Brussels Convention. The committee of experts = responsible for=20 Article 8(1) believed that it represented the most effective means of = securing=20 the return of objects. As we shall see, existing rules of jurisdiction = rely=20 generally on the domicile of the defendant or on the place where the = offence=20 giving rise to the claim occurred. Article 8(1) does not preclude = reliance on=20 these traditional grounds, by providing that access to the courts of the = jurisdiction in which the object is located is =93in addition to = the courts=20 of other competent authorities otherwise having jurisdiction under the = rules in=20 force in Contracting States=94. On the face of it, a claimant has a wide = choice of=20 forum; this choice must be exercised, however, within the parameters of = the=20 particular jurisdictional rules in force in the Contracting State in = which it is=20 sought to bring the claim.

6.6

In Ireland, persons domiciled outside of the State may be made = amenable to=20 the jurisdiction of Irish courts in the circumstances laid down in Order = 11 of=20 the Rules of Superior Courts. Additional grounds of jurisdiction = are=20 provided in the Jurisdiction of Courts and Enforcement of Judgments = (European=20 Communities) Act, 1988 (the =931988 Act=94), which brought the = Brussels=20 Convention on Jurisdiction and the Enforcement of Judgements in Civil = and=20 Commercial Matters, 1968 into force in Ireland. The Convention = extends to=20 civil =96 of which restitution of stolen property is clearly an example = =96 and=20 commercial matters.3

3	See Article=20 = 1.

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The Lugano EC-EFTA Judgments Convention, 1988 is a parallel = Convention=20 in force between Member States of the EC and those of the European Free = Trade=20 Association. In the case of a person seeking return of a cultural = object, the=20 provisions of these Conventions will determine jurisdiction in those = cases in=20 which the person from whom the return of the object is sought is = domiciled in=20 the EC/EFTA territories.

6.7

The 1988 Act makes provision for reciprocal recognition and = enforcement of=20 judgments in civil and commercial matters as between Ireland and certain = Member=20 States of the European Community.4 A = defendant=20 domiciled in a State other than Ireland may be made amenable to the = jurisdiction=20 of the Irish courts in circumstances additional to those provided in = Order 11.=20 Order 11A⁵ of=20 the Rules of Superior Courts applies to service in proceedings which are = governed by the 1968 Convention and the 1988 Act.6 Rule 2 = provides=20 that service outside the jurisdiction is permissible without leave of = the Court=20 where

(1)	The claim made by the summons is one which by virtue of = the 1988=20 Act the Court has power to hear and determine;=20 and

(2)	No proceedings between the parties concerning the same = cause of=20 action is pending between the parties in another contracting = State;=20 and

(3)

Either:

(a)

The defendant is domiciled in any contracting State,=20 or

(b)

the proceedings commenced by the originating summons are=20 proceedings to which the provisions of Article 16 of the = 1968=20 Convention concerning exclusive jurisdiction apply,=20 or

(c)

The defendant is a party to an agreement conferring = jurisdiction=20 to which the provisions of Article 17 of the 1968 Convention = concerning prorogation of jurisdiction=20 apply.

6.8

The Court will exercise its power to hear and determine any civil or=20 commercial matter involving a person domiciled in a Contracting State = which=20 falls within one of the categories listed in Articles 5 to 15 of the = Convention.=20 If the defendant is not domiciled in a Contracting State, jurisdiction = is, in=20 general,

The=20 Contracting States are listed in section 1 of the 1988 Act = as=20 Belgium, the Federal Republic of Germany, France, Italy, = Luxembourg,=20 the Netherlands, Ireland, Denmark, the United Kingdom and = Greece;=20 Spain and Portugal were added by section 3 of the = Jurisdiction of=20 Courts and Enforcement of Judgments Act, 1993. The Lugano=20 Convention, referred to in the 1993 Act, parallels the 1968=20 Convention in respect of the then EFTA States: Austria, = Finland,=20 Iceland, Norway, Sweden and = Switzerland.

5	Inserted by=20 SI/14 of 1989.

Article 1=20 of the Convention states that it does not apply to =931. the = status or=20 legal capacity of natural persons, rights in property = arising out of=20 a matrimonial relationship, wills and succession; 2. = bankruptcy,=20 proceedings relating to the winding-up of insolvent = companies or=20 other legal persons, judicial arrangements, compositions and = analogous proceedings; 3. social security; 4. = arbitration.=94. The=20 full text of the Convention is reproduced as the First = Schedule to=20 the 1988 = Act.

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governed by the national law of the Contracting State in which the = plaintiff=20 is domiciled. The only exceptions are where the matter is one in respect = of=20 which exclusive jurisdiction is provided regardless of domicile under = Article=20 16, or the defendant is an insurer, in which case special rules apply = under=20 Article 8.

6.9

Articles 2 and 5(3) of the 1968 Convention are of interest to a = plaintiff=20 seeking return of a cultural object. Article 2 provides that;

=93Subject to the provisions of this Convention, persons = domiciled7 in = a=20 Contracting State shall, whatever their nationality, be sued in = the courts=20 of that State.=94

6.10

Article 5(3) adds that a person domiciled in a Contracting State may = be=20 sued

=93in matters relating to tort, delict or quasi-delict, in the = courts for=20 the place where the harmful event = occurred=94,

if the other court is in a Contracting State. The Article raises a = number of=20 points of interpretation. The terms =93tort, delict or quasi-delict=94 = are not found=20 in the jurisprudence of all of the Contracting States of the = Convention8, = although the=20 civil wrongs which these terms describe are, as a general rule, = justiciable=20 throughout its territories. The European Court of Justice has concluded = that=20 the

The=20 Drafting Committee of the Brussels Convention found it = difficult to=20 arrive at a harmonised meaning of the term =93domicile=94. = The inclusion=20 of a definition in the Convention was rejected as failing = outside=20 its scope and more properly belonging to a uniform law. = Article 52=20 of the Brussels Convention sets out the applicable law as = far as=20 domicile is concerned;

=93

1.	In=20 order to determine whether a party is domiciled = in the=20 Contracting State whose courts are seized of the = matter,=20 the court shall apply its internal=20 law.

If=20 a part is not domiciled in the State whose = courts are=20 seized of the matter, then, in order to = determine=20 whether the party is domiciled in another = Contracting=20 State, the court shall apply the law of that = State.=94

Although=20 the meaning of the term =93domicile=94 is not = defined in the=20 Convention, its Drafting Committee made it clear = from=20 the outset that the word did not convey the = meaning=20 attributed to it in common law countries; it = veered,=20 rather, towards the =93habitual residence=94 = criterion which=20 prevails in civil law jurisdictions. See Byrne, = P.,=20 The EEC Convention on Jurisdiction and the=20 Enforcement of Judgments (Round Hall Press, = 1990),=20 p. 150. Thus, section 13 of The Jurisdiction = of=20 Courts and Enforcement of Judgments (European=20 Communities) Act, 1988 states=20 that:

=93

1.	An=20 individual is domiciled within the State, or in = a state=20 other than a Contracting State if, but only if, = he is=20 ordinarily resident in the State or in that = other=20 state.

An=20 individual is domiciled in the State if but only = if, he=20 is domiciled in the State and is ordinarily = resident or=20 carries on any profession, business or = occupation in=20 that place.=94

The=20 Commission in its Report on Domicile and = Habitual=20 Residence as Connecting Factors in the Conflict = of=20 Laws (LRC 7=961983) has made recommendations = for=20 changes in the Irish law of domicile which have = been=20 implemented only in=20 = part.

In Case=20 814/79: Netherlands v. Ruffer, [1980] ECR 3807, = [1981] 3=20 C.M.L.R. 293, Advocate General Warner, when considering the = question=20 of whether these terms had their =93own independent meaning = and as=20 thus being common to all the Member States or as referring = to=20 substantive rules of the law applicable in each case under = the rules=20 of conflict of laws of the court before which the matter is = first=20 brought[=94] noted that:

=93to=20 treat the phrase =93matters relating to tort, = delict or=20 quasi-delict=94 as a reference to national legal = concepts=20 would only be possible if the corresponding = phrase in=20 the authentic text of the Convention in the = official=20 language or languages of each Member State = connoted a=20 concept known to the law of that State. In fact = that is=20 not so.=94 [1980] E.C.R. 3807 at=20 = 3833.

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terms should, for the purpose of the interpretation of the = Convention, be=20 given a meaning independent of that attributed to them in the various=20 Contracting States in which they are used. In so concluding, the Court = did not,=20 however, identify the exact parameters of this Convention concept, but = added=20 that,

=93a comparison of the different language versions [of the 1968 = Convention] shows that the concept of =93tort, delict, or = quasi-delict=94 must=20 be interpreted in a broad sense and not limited to a few types of = unlawful=20 acts. The concept consists at any rate of a culpable or = intentional act or=20 omission, contrary to the law or to unwritten standards of care, = which=20 causes injury to a third party.=949

6.11

Actions based upon the wrongful interference with the possession and = title of=20 the owner of cultural objects clearly constitute actions derived from an = intentional act, which is contrary to the law and causes injury to the=20 dispossessed owner.

6.12

Another question of interpretation arising from Article 5(3) relates = to the=20 place of occurrence of the =93harmful event=94. Should the harmful event = be deemed=20 to occur at the location at which the harm or injury is sustained or the = place=20 of the event which caused the harm? Expressed in the context of the tort = of=20 detinue, is it the place where the owner is deprived of his or her = object or the=20 location at which the defendant refused to return the object upon a = request by=20 the dispossessed plaintiff? The European Court of Justice concluded in=20 Handelswekerij G.J. Bier B.V., that the phrase must be deemed to=20 encompass both possibilities:

=93The result is that the defendant may be sued, at the option = of the=20 plaintiff, either in the courts of the place where the damage = occurred or=20 in the courts of the place of the event which gives rise to and is = at the=20 origin of that damage=94.10

6.13

We must now consider whether this test, which was laid down in a case = involving negligence, may be applied equally to the tort of detinue, = given that=20 negligence is more readily amenable to dissection into its component = parts. It=20 is worth noting that the language of the Court in Handelswerkerij = suggested that it was intended to set out a rule of general = application.

Detinue consists of

=93the wrongful refusal by the defendant to deliver up to the = plaintiff a=20 chattel after demand has been made by the plaintiff to do = so.=9411

On the question of whether the request for return, being made in = Ireland,=20 can

9	Ibid.,=20 at 3814.

10	Case 21/76=20 Handelswekerij G.J. Bier B.V. v. Mines de Potasse = d'Alsace=20 S.A. [1976] ECR 1735 at = 1748.

11	McMahon, B=20 and Binchy, W op. cit., p.528 (emphasis=20 = added).

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be regarded as one element which =93gives rise to and is at the = origin of the=20 damage=94, it is significant that it is the refusal to return on foot of = a request=20 to do so which constitutes commission of the tort. The importance of the = demand=20 is to give notice to the defendant that a claim is being made,12 and = indeed an=20 action will fail if no such knowledge exists. While the request per = se is=20 a prerequisite to the arising of a cause of action, it can hardly be = regarded as=20 giving rise to the damage. Even if it could be so regarded, it must be = borne in=20 mind that while the request originates with a possessor in Ireland, it = does not=20 become effective until its ultimate communication, which occurs outside = Ireland,=20 and so fails to satisfy the test on two grounds.

Detinue is a continuing tort,13 with = damage to=20 the putative plaintiff =96 the denial of enjoyment of his chattel =96 = being=20 sustained in Ireland. While the tort, the refusal to return, is = committed in=20 another jurisdiction, it is arguable that Ireland is the =93place where = the damage=20 occur[s]=94, and that a claimant in Ireland should have a right of = access to the=20 Irish courts in order to avail of a remedy. We see no objection in = principle to=20 Irish courts having the option of accepting jurisdiction to hear such a=20 claim.

6.14

Thus, applying the Handelswerkerij approach, a defendant with = French=20 domicile (in the sense in which that term is understood under the = Brussels=20 Convention) who, whilst in Germany refuses to accede to a request for = the return=20 of a cultural object stolen in Ireland and then brought to Germany, may, = it=20 appears, be sued for its return in France =96 by virtue of Article 2 =96 = or in=20 Germany, the place where a significant element of the tort took place, = or=20 possibly in Ireland, the place where the damage is sustained. It rests = with the=20 dispossessed plaintiff to choose from amongst the three = jurisdictions.

6.15

The situation is not, however, as straightforward if the defendant is = not=20 domiciled in a Contracting State. Irish law in this regard is = essentially=20 procedural in nature. The fundamental rule relating to actions in=20 personam=96 of which an action in detinue is one14=96 = asserts that any=20 person may be subjected to the jurisdiction of the Irish courts provided = that=20 personal service of an originating summons has been served upon him or = her. As a=20 general rule, this means that a defendant must be personally present in = the=20 jurisdiction. A defendant who is

12	In King=20 v. Walsh, a claim in detinue failed because a demand for = return=20 had not been brought to the knowledge of the person of whom = it was=20 made. A letter was sent to his home which he did not receive = because=20 he was in another part of the country; [1932] IR=20 178.

Detinue is=20 =93a continuing cause of action which accrues at the date of = the=20 wrongful refusal to deliver up the goods and continues until = delivery up of the goods or judgment in the = action...=94per=20 Diplock LJ in General and Finance Facilities Ltd. v. = Cooks Cars=20 Ltd. [1963] 2 All ER 314 at = 317.

See the=20 dictum of Holmes J. in Tyler v. Judges of Court of=20 Registration, 175 Mass. 71 at 76, 55 N.E. 812 at 814 = (1900): =93If=20 the technical object of the suit is to establish a claim = against=20 some particular person, with a judgment which generally in = theory,=20 at least, binds his body, or to bar some individual claim or = objection, so that only certain persons are entitled to be = heard in=20 defence, the action is in personam, although it may concern = the=20 right to, or possession of, a tangible thing. ... If, on the = other=20 hand, the object is to bar indifferently all who might be = minded to=20 make an objection of any sort against the right sought to be = established, and if any one in the world has a right to be = heard on=20 the strength of alleging facts which, if true, show an = inconsistent=20 interest, the proceeding is in rem. ... All proceedings, = like all=20 rights, are really against persons. ... Personification and = naming=20 the res as defendant are mere symbols, not the = essential=20 matter. They are fictions, conveniently expressing the = nature of the=20 process and the result; nothing more=94: see Binchy, W., = Irish=20 Conflict of Laws (Butterworths, 1988) p.=20 = 124.

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abroad may, however, submit to the jurisdiction of the Irish courts = of his or=20 her own volition. Likewise the general rule requiring the defendant's = presence=20 within the jurisdiction is modified by Order 11 of the Rules of the = Superior=20 Courts 1986 which permits service outside of the jurisdiction in = certain=20 enumerated circumstances. Of concern in this regard are Orders 11(1)(c) = and=20 (f):

Rule 11(1)

Service out of the jurisdiction of an originating summons = or=20 notice of an originating summons may be allowed by the Court = whenever =96

(f) the action is founded on a tort committed within the=20 = jurisdiction.

6.16

Under the Order, the plaintiff may apply to the Court for an order = permitting=20 service outside the jurisdiction. Such an application is not necessary, = however,=20 where the Court exercises jurisdiction extra-territorially under the=20 Jurisdiction of Courts and Enforcement of Judgments (European = Communities)=20 Act, 1988 and the criteria laid down in Order 11A, Rule 2 cited = above are=20 satisfied.

6.17

The location of the commission of a tort will in many circumstances = be quite=20 clear; this clarity diminishes, however, when there is a foreign element = involved in the case. As we saw when considering Article 5(3) of the = 1968=20 Brussels Convention, the injury caused by the tort may be sustained in = one=20 jurisdiction although the tortfeasor's act which gave rise to the action = was=20 committed elsewhere. The interpretation of the phrase =93tort committed = within the=20 jurisdiction=94 adopted by the Irish Supreme Court in Grehan v. = Medical=20 Inc. mirrors that adopted by the European Court of Justice in=20 Handelswerkerij G.J. Bier B.V., considered above. The following=20 dictum of Walsh J. delivering judgment for the Supreme Court, = sets out=20 the current legal criteria in this jurisdiction:

=93As to jurisdiction, if it appears that any significant = element in the=20 commission of the tort occurs within this jurisdiction then the = plaintiff=20 will have at least fulfilled the threshold requirements set out in = O.11,=20 r. 1(f). But that is not sufficient to raise a presumption or an = inference=20 that the Court should exercise discretion in favour of making an = order for=20 service out of the jurisdiction. Any approach which insists on any = one=20 constituent element of the commission of the tort occurring within = the=20 jurisdiction can only give rise to difficulty. In any case before = the=20 court which clearly calls for the hearing of the proceedings in = Ireland=20 .... an order for service outside the jurisdiction should not be = denied=20 merely because of the fact that some significant element or = elements in=20 its commission occurred outside the jurisdiction. For example, in = many=20 cases it would be quite inappropriate that the invocation either = of =93the=20 place of injury=94 or =93the last event rule=94 should deny to a = plaintiff the=20 right

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of service out of the jurisdiction. It seems to me sufficient = if=20 any significant element has occurred within the = jurisdiction. To=20 require that the element should be the most significant one = could=20 render a plaintiff's task more uncertain and the outcome more=20 arbitrary.=9415

6.18

The comments made earlier about the amenability of the tort of = detinue to=20 division into its component parts apply equally at this juncture. = However, it=20 must once again be conceded that although Grehan itself involved = a=20 negligence action, the language of the Supreme Court was sufficiently = general to=20 encompass all actions in tort. In the event, thus, that a significant = element of=20 the tort of detinue is committed within this jurisdiction, the Irish = courts=20 may exercise jurisdiction. Satisfaction of this prerequisite does = not,=20 however, conclude the matter; it remains at the discretion of the Court = whether=20 or not to accept jurisdiction.

6.19

If the Irish courts may not exercise jurisdiction, the party = dispossessed of=20 his or her cultural object must pursue the action elsewhere; he or she = must look=20 to rules on jurisdiction in the location where the tort was committed, = where the=20 defendant is domiciled or resident, where the object is located, whether = the=20 defendant is in the same jurisdiction as the object etc. and decide=20 accordingly.

6.20

A plaintiff seeking the return of a stolen object must, therefore, = establish=20 at the outset whether his or her claim falls within the regime provided = by the=20 1968 Convention and the 1988 Act. Furthermore, special provisions = regarding the=20 mechanism by which service is to be effected are provided by the = Hague=20 Convention on the Service Abroad of Judicial and Extrajudicial Documents = in=20 Civil or Commercial matters, 1965 (the =93Hague Convention=94) which = entered=20 into force in Ireland on June 4, 1994. Order 11B of the Rules of = Superior=20 Courts¹⁶=20 regulates the practice and procedure of the Superior Courts under that=20 Convention and applies to the service or =93any summons, notice, = document,=20 citation, petition, affidavit, pleading, order or any form=94 issued = under the=20 Rules or lodged for service under the Order. The Convention is the only=20 international instrument ratified by Ireland which relates to the = service of=20 documents abroad. While it provides the appropriate method of service in = States=20 which are a party to it, alternative methods may be acceptable under = Irish law.=20 It is important to note, however, that =93care should be exercised to = ensure that=20 the use of such methods does not compromise the enforcement of any = judgment=20 ultimately obtained=94.17

6.21

In order to ensure that a claimant may rely on the location of the = object as=20 a basis of jurisdiction, we recommend that a provision be enacted to = this=20 effect. Such a provision exists under the European Communities = (Return of=20 Cultural Objects) Regulations, 1994, where the requesting State may = retrieve=20 an object located in the requested State on foot of a claim against the=20 possessor or

15	[1986] IR=20 528 at 541=962.

16	Inserted by=20 SI No. 101 of 1994.

17	O'Floinn, B=20 and Gannon, S Practice and Procedure in the Superior = Courts=20 (Butterworths, 1996)=20 p.74.

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holder of such an object. In our opinion the location of the object = at the=20 time the claim is initiated should be the preferred jurisdiction. The = benefit in=20 so providing lies in the fact that if a successful claim is brought for = return,=20 that judgment will be directly enforceable without the need to rely on = the=20 courts of a second State; by contrast, if the claim is brought against = the=20 possessor domiciled in State A for the return of an object located in = State B,=20 the courts of State B would have to enforce a judgment of a foreign=20 jurisdiction, giving rise to difficulties associated with the reluctance = of=20 States to so enforce.

3. Applicable law

6.22

Having determined the preliminary issue of jurisdiction, the court to = which=20 competence is assigned must determine, in accordance with its own = principles of=20 private international law, which laws shall govern the plaintiff's claim = for=20 restitution. Is this issue of the right to possession to be governed by = the law=20 of the State in which the object is located, or by those of another = country?

6.23

Unfortunately, there is no reported Irish case on this issue. The = case law=20 from other jurisdictions invariably categorises this situation as one = involving=20 title in movables in the event of the transfer of such movables from one = jurisdiction to another.18 In the = absence of=20 any Irish judicial precedent, attention is focused upon the position = pertaining=20 in legal systems similar to our own. The statements from other common = law=20 jurisdictions appear quite emphatic on the applicable rule; the issue = shall be=20 governed by the law in operation in the jurisdiction in which the = transfer of=20 the object to the defendant =96 whether by theft, sale or otherwise =96 = took place.=20 As Cheshire and North note:

=93[I]t is now established that the proprietary effect of a = particular=20 assignment of movables is governed exclusively by the law of the = country=20 where they are situated at the time of the assignment. An owner = will be=20 divested of his title to movables if they are taken to a foreign = country=20 and there assigned in circumstances sufficient by the local law to = pass a=20 valid title to the assignee. The title recognised by the foreign = lex=20 situs overrides earlier and inconsistent titles no matter by = what law=20 they may have been created.=9419

6.24

Indeed, this rule appears to have found acceptance in common and = civil law=20 jurisdictions alike; O'Keefe and Prott refer to:

=93[a] general rule of Private International Law worked out by = the courts=20 of European legal systems in the nineteenth century [which = applied] to=20 property is the lex rei sitae. The lex rei sitae = rule now=20 seems to have

18	For Private=20 International Law purposes, property is divided into = movables and=20 immovables; see for example, Binchy W., Irish Conflict of = Laws, (Butterworths, 1988) Chapter 19: Movable and = Immovable=20 Property.

19	Quoted in=20 Winkworth v. Christie, Manson & Woods Ltd., = [1980] 1 All=20 ER 1121. The quote was taken from the tenth edition of = Cheshire=20 & North's Private International Law (1979, = Butterworths),=20 = p.527.

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been applied by virtually all systems of law.=9420

Likewise, Reichelt refers to it as =93the applicable = rule=94.21

6.25

Consider the application of the lex rei sitae rule in the = following=20 circumstances: a cultural object is stolen from its owner in = jurisdiction A. It=20 is brought to jurisdiction B where it is sold to a purchaser. The = domestic law=20 of jurisdiction A governs the transfer from owner to thief as that = transfer took=20 place within that jurisdiction. The laws of jurisdiction B, however, = govern the=20 transfer from thief to purchaser. Thus, in the relatively unlikely event = that a=20 person who stole a cultural object abroad has retained possession of it = and=20 introduced it into Ireland, the laws of the jurisdiction in which the = criminal=20 act occurred will govern the plaintiff's claim for restitution. Equally, = if an=20 object which ultimately reaches Ireland, falls, whilst outside of this=20 jurisdiction, into the hands of a bona fide purchaser, foreign = laws will=20 apply. If, however, a person makes a good faith purchase in Ireland, the = laws of=20 this jurisdiction will govern the claim.

6.26

The decision of the English courts in Winkworth v. Christie, = Manson and=20 Woods Ltd,22 the = facts of=20 which are set out in Chapter 3, provides a pertinent illustration of the = lex=20 rei sitae rule. The transfer in question =96 the bona fide = purchase by=20 virtue of which the second defendant claimed to have acquired title =96 = occurred=20 in Italy. The judge thus concluded that Italian law =96 according to = which title=20 passes to a bona fide purchaser23=96 = governed the=20 issue. Accordingly, the plaintiff could not obtain restitution of the = works of=20 art.

6.27

This decision highlights the difficulties facing a person or body = attempting=20 to retrieve a cultural object taken abroad; the ability to recover is=20 intrinsically linked with the destination of the object and the laws = concerning=20 title in movable property in operation there. Had Mr Winkworth had the = dubious=20 good fortune to have his collection of works of art stolen and = subsequently=20 transferred to a purchaser in good faith in Ireland or another common = law=20 country in which the laws of transfer of title do not, as a rule, = recognise the=20 validity of a transfer to a bona fide purchaser, application of = the=20 lex rei sitae would have facilitated their return.

6.28

The fact that the laws of a particular jurisdiction protect an = owner's title=20 against a claim by other parties such as bona fide purchasers = does not=20 guarantee the return to the dispossessed owner of an object stolen from = that=20 jurisdiction or introduced there following a theft. The matter turns on = those=20 preliminary private international law issues, yet its rules were not=20 devised:

=93with the special problems of cultural heritage protection in = mind ...=20 [T]he development of this field, as well as the increasing amount=20 of

20	O'Keefe, P=20 and Prott, L Law and the Cultural Heritage, Volume III:=20 Movement (Butterworths, 1989), pp.638=96639, para.=20 1238.

21	Reichelt,=20 G., International Protection of Cultural Property, 1985 = Uniform=20 Law Review, 42.

22	[1980] 1=20 All ER 1121.

23	The=20 relevant provisions of Italian law are considered below at = para.=20 6.39 et=20 seq.

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travel and trade between States, is testing these rules to the = utmost. Until=20 quite recently there were very few cases specifically raising these = sorts of=20 issues in relation to the cultural heritage: the last 15 years have seen = [a=20 significant number of cases]. Clearly this area is expanding = dramatically.=20 Nevertheless it is evident that the rules of Private International Law, = as they=20 currently operate, often defeat the aim of preserving the cultural=20 heritage.=9424

4. Substantive Rules of Law

6.29

When the role of private international law in the plaintiff's claim = has been=20 resolved, the task becomes one of identifying the internal law governing = competing claims to the object in question in order that the = dispossessed=20 plaintiff may secure its return. The plaintiff's claim for restitution = is based=20 upon his or her alleged ownership of the stolen objects. That claim will = be=20 defeated if another party to the action can show a title superior to = that of the=20 dispossessed owner. Thus, the ultimate question for the court is one of=20 relativity of title: in whom does the strongest title to the stolen = cultural=20 object rest? Inevitably, different jurisdictions afford different = weights to the=20 claims to title of different parties.

(a) Retrieving the object from a thief or other party who = acquired the=20 object with knowledge of the theft

6.30

All jurisdictions contain in their law some reference to the = principle that=20 parties tainted by knowledge of the theft cannot obtain title to the = objects=20 they have stolen or received. A number of jurisdictions =96 = traditionally, civil=20 law jurisdictions =96 provide, however, that the passage of a period of = time=20 deprives the dispossessed owner of his or her right to retrieve the = object and=20 thereby permits title to vest in the person in whose hands the object = has been=20 for the requisite period, whether he or she is a bona fide = purchaser, a=20 thief or another party implicated in the theft.

6.31

German law, for example, permits an acquisition of title after ten = years=20 regardless of good faith on the part of the acquirer. French law applies = a=20 thirty year limitation period where such good faith is lacking. Most = civil law=20 jurisdictions, however, confine the acquisition of title to bona = fide=20 parties.

6.32

In many Common Law systems, on the other hand, statutes of limitation = operate=20 to bar the owner's right of action for recovery after a specified period = of=20 time, without thereby quieting his or her title. In theory, therefore, = ownership=20 does not pass to the thief nor to the receiver. In Ireland, the relevant = statutory provision provides that;

24	O'Keefe and=20 Prott, op. cit, para. 1237,=20 p.638.

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=93where any cause of action in respect of the ... wrongful = detention of=20 a chattel has accrued to any person ... and the period fixed for = bringing=20 that action and for bringing any action in respect of ... a = further ...=20 wrongful detention ... has expired, and he has not during that = period=20 recovered possession of the chattel, then ... the title of that = person to=20 the chattel shall be extinguished.=9425

6.33

The appropriate limitation period is six years from the accrual of = the cause=20 of action, i.e., from the date of the wrongful refusal to accede to the = request=20 for return.26

6.34

After the passage of the appropriate period of time, therefore, the = owner's=20 right of action and his or her title to the object in question are = extinguished.=20 The practical effect of the Statute of Limitations therefore appears to = be that=20 the possessor's ownership of the object is placed beyond challenge, = regardless=20 of his or her fides.27 We must = agree=20 with the sentiment that:

=93although th[is] situation ... may not often arise in = practice ... it=20 is wrong for the law to extend the protection of limitation to the = thief=20 or receiver at the expense of the true owner.=9428

(b) Retrieving the object from a bona fide = purchaser

6.35

The matter is much more complex if the defendant is a bona = fide=20 purchaser or possessor of the stolen object. The 1970 UNESCO = Convention on=20 the Means of Prohibiting and Preventing the Illicit Import, Export and = Transfer=20 of Ownership of Cultural Property, states that Contracting States = shall, at=20 the request of another Contracting State, ensure the return of = designated=20 objects stolen from a museum or similar institution in the requesting = State=20 whether or not the object

Section=20 12(2) Statute of Limitations, 1957. Section 12(1) = states that=20 =93where any cause of action in respect of the ... wrongful = detention=20 of a chattel has accrued to any person, and before he = recovers=20 possession of the chattel, a further ... wrongful detention = takes=20 place then ... no action shall be brought in respect of the = further=20 ... wrongful detention after the expiration of six years = from the=20 accrual of the cause of action in respect of the original = ...=20 wrongful detention=94.

26	Section=20 11(2)(a) of the Statute of Limitations, 1957, = provides that=20 =93an action founded on tort shall not be brought after the = expiration=20 of six years from the date on which the cause of action=20 accrued=94.

27	We have=20 recommended at para. 3.64 that alternative limitation = periods to=20 those provided in the Statute of Limitations, 1957 = should=20 apply to claims under the = Convention.

Per=20 the Law Reform Committee of England and Wales, Twenty-first = Report:=20 Final report on the limitations of actions (1974), p.33, = para. 3.5.=20 At the time, English Law offered similar protection to a = thief or=20 receiver as that currently afforded under Irish law; see = section=20 3(1) and (2) of the Limitation Act, 1939. The = Committee added=20 that =93in Scots law time will never run in favour of a = thief or=20 person =93privy to the stealing=94, an expression which, we = are advised,=20 includes a receiver. This appears to us to be a precedent = which=20 English law could well follow and we have accordingly = examined the=20 possible consequence of making theft and allied offences=20 =93imprescriptible=94.=94

The=20 Limitation Act, 1980 dealt with this situation in = England and=20 Wales. The complex provisions of section 4 thereof provide = that a=20 purchase in good faith starts time running on behalf of the = party in=20 good faith and against the owner, as distinct from the thief = and=20 others criminally tainted by the theft: time will never run = in=20 favour of the latter pursuant to this new statutory regime. = The same=20 rule applies in the U.S. In Ireland, however, no such = amendment has=20 been = introduced.

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is in the hands of a bona fide purchaser. Ireland, however, = has not=20 adopted this Convention and therefore Irish Courts have never had to = construe=20 it.

6.36

A large portion of the cultural objects stolen in Ireland are = transported to=20 other Member States of the European Community. Nonetheless, the = principles of=20 European Community law do not play any role in determining the title of = objects=20 so removed. Indeed, any attempt by the Community to determine the = primacy of one=20 claim over another would, it appears, be beyond its remit;

=93In claims for return based on ownership [i.e., in the case = of theft],=20 the issue is the choice of substantive law governing the validity = of=20 [transfers] of moveable property. The EC under Article 222 Treaty = of Rome=20 is not =93competent to prejudice the rules in Member States = governing the=20 system of property ownership.=9429

6.37

Thus, when a stolen cultural object is removed from the jurisdiction, = recourse must be had exclusively to domestic principles in order to = determine=20 the dispute between an owner and a bona fide purchaser. As we = have seen,=20 the principles applied shall be those of the jurisdiction in which the = transfer=20 of the object to the bona fide purchaser took place.

(i) Common law jurisdictions

The balance which is struck by the Common Law between the rights of = the=20 bona fide purchaser and the dispossessed owner has already been=20 discussed³⁰=20 and, as we have seen, the dispossessed owner is in the more favourable=20 position.³¹

(ii) Civil law jurisdictions

6.38

In civil law systems, on the other hand, the general rule is that = possession=20 equates with title, so that a person in possession of an object is=20 presumed to be the owner thereof. It is, however, at best a loose = equation, as most jurisdictions modify this rule with a number of = exceptions. It=20 should be noted that it is not accurate to treat all civil law systems = as=20 identical as far as these rules are concerned; some offer almost = immediate and=20 absolute protection to a bona fide purchaser, whilst others veer = towards=20 an interim route, protecting purchaser and dispossessed owner in = different=20 circumstances. It is now proposed to examine the law on this matter in a = number=20 of such jurisdictions; the analysis is, essentially, confined to = European=20 systems, although the legacy of colonialism is

29	Nicholas,=20 T.J., EEC Measures on the Treatment of National Treasures,=20 Comparative Law Journal, Nov. 1993,=20 p.127.

30	See above,=20 para. 3.21 et seq.

31	As we have=20 pointed out, however, the effect of the Statute of = Limitations seems=20 to be to limit the advantage conferred on the dispossessed = owner to=20 the duration of the limitation period, after which time his = or her=20 title is=20 extinguished.

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such that the principles contained therein are embodied in the laws = of many=20 non-European countries.

Italy

6.39

There is unanimous agreement amongst all commentators that Italian = law =96 once=20 modelled on the French Civil Code but substantially redrafted in 1942 = =96 provides=20 the most complete form of protection for bona fide = purchasers.32 = Articles 1153 and=20 1154 of the Italian Civil Code read as follows:

1153: Effects of acquisition of possession. He to = whom=20 movable property (812) is conveyed by one who is not the = owner=20 acquires ownership of it through possession, provided that = he be in=20 good faith at the moment of consignment and there be an = instrument=20 or transaction capable of transferring=20 ownership.

Ownership is acquired free of rights of others in the = thing, if=20 they do not appear in the instrument or transaction and the = acquirer=20 is in good faith.

1154: Knowledge of illegitimate provenance of = thing. The=20 erroneous belief that his transferor or a prior possessor = had become=20 owner does not justify one who acquires knowing the = illegitimate=20 provenance of the = thing.

6.40

The possessor immediately enjoys a privileged position but he or she = is also=20 subject to a number of strict preconditions. He or she must be in actual = possession of the object and must pass the bona fide test, which = is=20 strictly defined under Italian law.

=93A purchaser who, having regard to the circumstances of the = purchase=20 (place, price, etc.), may have acted with false innocence by = failing to=20 seek fuller information about a dubious offer would be guilty of = gross=20 negligence (as distinct from penal complicity) and might therefore = be=20 ordered to restore the goods.=9433

6.41

In addition, public domain property is inalienable and the purchaser = cannot,=20 therefore, oppose any claim for the recovery thereof.

6.42

Unlike Italy, most civil law jurisdictions do not offer immediate = protection=20 to a bona fide purchaser but insist upon the lapse of a fixed = period of=20 time.

O'Keefe and=20 Prott, op. cit., p.408, para. 761. Chatelain, = Means of=20 Combatting The Theft of and Illegal Traffic in Works of Art = in the=20 Nine Countries of the E.E.C. (European Commission, = XII/757/76=96E,=20 1976), p.95. Reichelt, op. cit., p.104. = Byrne-Sutton,=20 Aspects Juridiques du Commerce et International de = l'Art;=20 (Geneva, 1985).

33	Chatelain,=20 op. cit.,=20 p.95.

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Spain

6.43

Spanish law permits an owner to recover possession from a good faith=20 possessor within 3 years of acquisition.34 As in = France,=20 imprescriptibility of certain cultural objects in public hands = represents an=20 important exception to the above.

Switzerland

6.44

Under Swiss law, possession raises a presumption of title. An owner = deprived=20 of possession through theft or loss may reclaim from a possessor within = 5 years=20 from the relevant date. If, however, the object came into the = possessor's hands=20 at a public auction or at market overt35 and the = possessor=20 acquired in good faith, the owner may not recover unless he or she = forwards=20 compensation to the possessor, provided the latter acted in good = faith.

France

6.45

The law in France adopts an intermediate stance in which the = =93bona=20 fide possessor and the theft victim are protected in turn.=9436 The = fundamental=20 principle is one of protection of the bona fide possessor. = Article 2279=20 of the Civil Code proclaims that =93in respect of movables, possession = represents=20 title.=94 The article continues:

=93Nevertheless, a person who has lost or been robbed of an = article may=20 take an action for its recovery for a period of three years from = the date=20 of the loss or theft against a person in whose hands he finds it; = the=20 latter may proceed against the person from whom he obtained=20 it.=94

6.46

The requirement of bona fides on the part of the possessor has = been=20 deemed to be a prerequisite for the application of Article 2779: = =93[i]ndeed, it=20 was so obvious that the drafter of the Civil Code, normally a model of=20 precision, forgot to mention it.=9437 (In the = absence=20 of such bona fides, as we have seen38 a 30 = year=20 limitation period applies).

6.47

Article 2280 does offer limited protection to the possessor who makes = his or=20 her purchase at a fair or market, at a public sale or from a merchant = who sells=20 similar articles, against an owner whose article was lost or stolen and = who=20 seeks to recover within the 3 year period: in these circumstances, = =93the original=20 owner may only cause it to be returned to him by paying the possessor = the price=20 which it cost him.=94 No limitation period operates, however, if the = good faith=20 purchaser acquires the goods as a result of acts not amounting to theft = or loss=20 i.e., in those circumstances the purchaser acquires immediate = protection. To=20 claim such immediate protection, the possession by the purchaser must be = =93continuous, uninterrupted, peaceful, public, unambiguous and as = owner.=9439

34	Article=20 1956 Civil Code.

35	The market=20 overt exception is considered above, at para. 3.21 et=20 seq.

36	Chatelain,=20 op. cit., p.93.

37	Ibid.,=20 p.94.

38	Supra,=20 para. 6.31.

39	O'Keefe and=20 Prott, op. cit.,=20 p.406.

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6.48

In France, a most important exception to the rule which equates = possession=20 with title concerns goods with =93public domain status=94 i.e., those = belonging to a=20 public authority and directly dedicated to the use of the public. These = goods=20 are both inalienable and imprescriptible; consequently, Articles 2279 = and 2280=20 do not apply in these circumstances and such goods may form the subject = of an=20 action for recovery, at any time, and against whomsoever is in = possession=20 thereof. No compensation shall be payable in these circumstances.

6.49

Some other civil law jurisdictions offer the dispossessed owner a = level of=20 protection traditionally associated with common law systems:

Germany

6.50

West Germany, for example, was aligned with the common law countries = by=20 Chatelain in his 1976 study of theft and illegal traffic in works of art = in the=20 then EEC. Here, the principle of acquisition of property by a good faith = possessor is non-applicable in the case of stolen or lost goods.40 An = exception to=20 this rule applies in the case of a sale at public auction to a person in = good=20 faith. However, German law recognises a ten year prescription period, = after=20 which all parties, including the thief, are immune from action to = retrieve the=20 dispossessed goods.41

Portugal

6.51

Portugal is the only civil law country which O'Keefe and Prott align = with=20 those countries deriving from the English legal system.42 = Although the=20 nemo dat principle does not underpin this system, Portuguese law = appears=20 to achieve a similar result. As we have seen, in jurisdictions applying = the=20 nemo dat principle the question of bona fides is = irrelevant,=20 except as far as acquisitions at market overt are concerned. In = Portugal,=20 however, the presence of good faith can impact upon the purchaser's = rights.=20 Paragraph 2 of Article 1260 of the Portuguese Civil Code provides = that:

=93Possession by the holder of the legal title is presumed to = be in good=20 faith; possession by one who does not have legal title to it is = presumed=20 to be in bad faith.=94

6.52

The law does not afford any protection to possession in bad faith. = Hence the=20 view expressed by O'Keefe and Prott that, in practice, the Portuguese = rule=20 always protects the true owner, since any other possessor is deemed to = be in bad=20 faith. If, however, a possessor can overcome this presumption by = establishing=20 that he or she bought the object in good faith from a dealer of objects = of that=20 kind, then Article 1310 provides that the owner must compensate the = purchaser=20 for the price paid.

40	=A79351=20 Burgerliches Gesetzbuch (German Civil = Code).

41	=A7937=20 BGB.

42	O'Keefe and=20 Prott, op. cit.,=20 p.405.

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5. Enforcing a Foreign Judgment

6.53

A plaintiff who succeeds in obtaining judgment against a defendant = for the=20 return of a stolen cultural object taken from this jurisdiction may,=20 nonetheless, find it difficult to secure enforcement of this judgment. = If=20 judgment is handed down in the jurisdiction in which the object is = located, and=20 the defendant fails to comply with it, enforcement may be a relatively = simple=20 procedure. If, however, the court of jurisdiction A, to which competence = to hear=20 the claim was allocated under the rules of private international law, = orders the=20 return of a stolen cultural object removed from Ireland and brought =96=20 immediately or otherwise =96 to jurisdiction B, the plaintiff may = encounter=20 difficulties in enforcing Court A's order for return in jurisdiction = B.

(a) Enforcement in States Parties to the Brussels Convention = on=20 Jurisdiction in Civil and Commercial Matters, 1968

6.54

A judgment handed down in a State which is a party to the Brussels = Convention on Jurisdiction in Civil and Commercial Matters, 1968 = which is=20 enforceable in that State shall, as a general rule, be enforced in = another=20 Member State pursuant to Article 31 of the Convention upon the = application of=20 any interested party. A limited number of exceptions are provided in = Articles 27=20 and 28.⁴³ The=20 same position pertains in EFTA countries under the Lugano Convention.=20 Enforcement shall not be obtained where, inter alia, it would be = contrary=20 to public policy in the State in which it is sought.44 It is = arguable=20 that, for example, a court in a common law jurisdiction could, on the = basis of=20 public policy, refuse to enforce a foreign judgment giving title to a = bona=20 fide purchaser to whom the market overt concept did not apply. = Frias v.=20 Pickon,⁴⁵=20 an 1880 decision of the French Courts, concerned the enforcement of a = Spanish=20 rule on the inalienability of certain publicly-owned cultural objects. = The court=20 refused to accede to the request for enforcement of the rule on the = grounds=20 that, at the

43	According=20 to Article 34 of the Brussels Convention, the court applied = to shall=20 give its decision without delay and may refuse the = application only=20 for one of the reasons specified in Articles 27 and=20 28.

Article 27=20 provides that a judgment shall likewise not be = recognised:

=96	where=20 the judgment sought to be enforced was given in = default=20 of appearance, if the defendant was not duly = served with=20 the document which constituted the proceedings = or within=20 an equivalent document in sufficient time to = enable him=20 or her to arrange a = defence,

=96

if=20 the court of the State in which the judgment was = given,=20 in order to arrive at its judgment, has decided = a=20 preliminary question concerning the status of = legal=20 capacity of natural persons, rights in property = arising=20 out of a matrimonial relationship, wills or = succession=20 in a way that conflicts with a rule of the = private=20 international law of the State in which the = recognition=20 is sought, unless the same result would have = been=20 reached by the application of the rules of = private=20 international law of that = State,

=96	if=20 the judgment is irreconcilable with an earlier = judgment=20 given in a non-Contracting State involving the = same=20 cause of action and between the same parties, = provided=20 that this latter judgment fulfils the conditions = necessary for its recognition in the State=20 = addressed.

Article 28=20 provides further grounds for refusal, for example if the = judgment=20 conflicts with the provisions of sections 3, 4 or 5 of the=20 Convention which relate to jurisdiction in insurance = matters,=20 jurisdiction over consumer contracts and exclusive = jurisdiction as=20 provided in Article 16.

45	1886=20 Clunet, 593. The facts of the case are set out in O'Keefe = and Prott,=20 op. cit. at para.=20 1239.

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time, public policy in France protected the free circulation of goods = and=20 required that the interests of a bona fide purchaser of those = objects be=20 protected. The argument seems, however, to stretch unduly the = appropriate bounds=20 of the doctrine of public policy; logically, its application could = result in the=20 refusal by the Irish courts to enforce any foreign judgment based on = laws which=20 conflict with the comparable Irish rules. It should also be borne in = mind that=20 the Drafting Committee of the Brussels Convention envisaged that refusal = to=20 enforce a judgment on the basis that it was contrary to public policy = would=20 arise only in very limited circumstances.46

(b) Enforcement in non-Brussels Convention States

6.55

Judgments for restitution obtained in a non-Contracting State, = however, will=20 not be enforced in this jurisdiction. Underlying this refusal is an = anomalous=20 rule that only foreign judgments which require a defendant to pay to a = plaintiff=20 a definite sum of money may be enforced and even then only in limited=20 circumstances.47 = Accession to the=20 Unidroit Convention would modify this position somewhat; for example, = the=20 obligation on a =93possessor of a cultural object which has been stolen = [to]=20 return it=94 assumes a concomitant willingness on the part of States to = ensure=20 such return. The Convention itself is silent on the extent to which = Contracting=20 States are obliged to enforce foreign judgments, it having been the view = of the=20 drafters that the issue of recognition and enforcement was best dealt = with by=20 multilateral or bilateral treaties specifically addressed to that issue. = Accession would, therefore, necessitate conclusion of such agreements = with other=20 States Parties to the Convention.

6.56

While in general, it is to be expected that actions for return will = be taken=20 in the jurisdiction where the object is located, it may be advisable to = pursue a=20 claim in the jurisdiction of the possessor's domicile where the object = is=20 amenable to being moved rapidly across borders, as would be the case in=20 continental Europe. In this regard, it is significant that States may, = under=20 Article 8(3), take steps to protect the object even where the claim for = return=20 is proceeding in another jurisdiction if such measures are available = under its=20 laws. We recommend that a regime similar to that available under = Regulations=20 4(4) and 5 of the European Communities (Return of Cultural Objects) = Regulations,=20 1994 be instituted allowing the State to take possession of the object = or take=20 any other steps it considers necessary to prevent action to evade return = until=20 such time as a determination =96 whether by an Irish or a foreign court = =96 is made=20 as to whether the object is, in fact, to be returned.

46	See Byrne,=20 P., op. cit., p. 104 et = seq.

47	See Binchy,=20 W., op. cit., n.14,=20 = pp.602=96603.

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B. Restitution as a Consequence of Criminal Law = Enforcement

6.57

The criminal process is of relevance for the purpose of this Chapter = solely=20 to the extent to which it facilitates the restitution of the stolen = object,=20 whether as a by-product of the conviction of the thief or handler or as = a result=20 of discrete provisions in the Irish criminal law designed to secure the = return=20 to the owner of the stolen object.

6.58

If the offence of larceny occurs within this jurisdiction, the thief = may, at=20 least in theory, be prosecuted in the Irish criminal courts. The factual = situation may, however, hamper the ability to so prosecute; the location = in=20 another jurisdiction of the cultural object or the defendant raise = considerable=20 difficulties. We now turn to the provisions of Irish law which enable = the return=20 to this jurisdiction of cultural objects. Once the object is within this = jurisdiction, and the Irish courts have proceeded to conviction of the = accused,=20 the owner may retrieve the stolen object pursuant to Section 45(1) of = the=20 Larceny Act, 1916, as amended. This provision states that

=93[i]f any person guilty of any such felony or misdemeanour as = is=20 mentioned in the Act, in stealing, taking, obtaining, extorting,=20 embezzling, converting, or disposing of, or in knowingly = receiving, any=20 property, is prosecuted to conviction by or on behalf of the owner = of such=20 property, the property shall be restored to the owner or his=20 representative.=94

6.59

Restoration of the object to the owner follows automatically upon = conviction,=20 and irrespective of the person in whose hands the object is at the = time.

1. Extradition

6.60

If the Irish authorities seek the extradition from a jurisdiction = with which=20 Ireland has an extradition arrangement of a person suspected of the = larceny of a=20 cultural object, the object in question may likewise be returned to this = jurisdiction. Thus, for example, Article 20(1) of the Council of Europe=20 Convention on Extradition, 1957, reads;

=93The requested Party shall, in so far as its laws permits and = at the=20 request of the requesting Party, seize and hand over property:

(a)	which may be required as evidence=20 or

(b)	which has been acquired as a result of the offence = and=20 which, at the time of the arrest, is found in the = possession=20 of the person claimed or is discovered=20 = subsequently.=94

<= /TD>

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Ireland ratified this Convention in 1966.48

6.61

Article 20(4) adds that any rights which the requested Party or third = parties=20 may have acquired in the said property shall be preserved. Where those = rights do=20 exist, the property shall be returned to the requested party as soon as = possible=20 after the trial. If, for example, a bona fide purchaser has = acquired the=20 property in a civil law system which protects the primacy of his or her=20 interests over that of the dispossessed owner, the property must be = returned to=20 that purchaser after it has served its evidential purpose at trial. If, = however,=20 that purchaser, although now located in a civil law jurisdiction, = acquired the=20 object in a country in which the owner's rights withstand the bona = fide=20 purchase, he or she would not, pursuant to the lex rei sitae = rule, be=20 deemed to acquire any rights in it. Where the third party is a receiver, = then he=20 or she, and regardless of the jurisdiction in which he or she acquired = the=20 object, does not obtain any right to secure the return of the object = following=20 trial. At the successful conclusion of the criminal trial in Ireland, an = order=20 pursuant to section 45(1) of the Larceny Act, 1916 for the = restitution of=20 the stolen cultural object shall then be granted.

6.62

The above route is, of course, only open where the defendant is in = another=20 jurisdiction with which Ireland has an extradition arrangement and the = law of=20 that jurisdiction contains a provision akin to Article 20 above. Some = States may=20 also confine the offences in respect of which extradition shall be = ordered to=20 offences which attract a certain minimum sentence upon conviction.49

6.63

In reality, extradition plays a limited role in re-introducing stolen = cultural objects into this jurisdiction. In their 1983 review of the law = on the=20 protection of cultural heritage, O'Keefe and Prott noted that no case = had come=20 to their notice of the use of extradition proceedings in this = regard.50

2. The Criminal Justice Act, 1994

6.64

The 1990 Council of Europe Convention on Laundering, Search, = Seizure and=20 Confiscation of the Proceeds from Crime51 entered = into=20 force in Ireland on March 1,1997 and represents a measure which will = enhance=20 inter-state, including inter-police, co-operation. A number of its = provisions=20 should be of interest when attempting to retrieve objects stolen in this = jurisdiction and brought to another. Article 8, for example, under the = heading=20 =93Investigative Assistance=94 refers to the States Parties' = =93obligations to=20 assist=94:

=93The Parties shall afford each other, upon request, the = widest possible=20 measure of assistance in the identification and tracing of=20 instruments,

48	The Irish=20 Extradition Act, 1965 is considered below, at para.=20 7.14.

49	See, for=20 example, Section 10 of the Extradition Act,=20 1965.

50	O'Keefe, P.=20 and Prott, L, National Legal Control of Illicit Traffic = in=20 Cultural Property (UNESCO, Paris, = 1983).

51	Ireland=20 signed the Convention on October 15,=20 1996.

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proceeds and other property liable to confiscation. Such = assistance=20 shall include any measure providing and securing evidence as to = the=20 existence, location or movement, nature, legal status or value of = the=20 aforementioned property.=94

6.65

Article 13 refers to the States Parties' =93obligation to = confiscate=94:

<= /TBODY>

=93A [State] party which has received a request made by another = [State]=20 party for confiscation concerning instrumentalities or proceeds, = situated=20 in its territories shall =96

(a)	Enforce a confiscation order made by a court of a=20 requesting party in relation to such instrumentalities = or=20 proceeds;

(b)	Submit the request to its competent authorities for = the=20 purpose of obtaining an order of confiscation, and, if = such=20 order is granted, enforce=20 = it.=94

6.66

Our ability to benefit from the Convention turns upon the steps taken = by=20 other States to comply with it. Article 15 adds that the property = confiscated by=20 the requested Party shall be disposed of by that Party in accordance = with its=20 domestic law, unless otherwise agreed by the Parties concerned. Thus, if = the=20 Irish authorities issue a request to another State Party, the object may = be=20 retrieved if the above conditions are met.

6.67

We have in place the legislative machinery which will enable us to = fulfil our=20 obligations under this Convention. Only one of the provisions of Part = VII of the=20 Criminal Justice Act, 1990, however, is of any assistance when = the return=20 is sought of an object from abroad, and even its utility for our = purposes is=20 open to question. Section 52 states that:

=93Where on an application made in accordance with [this = section], it=20 appears to a judge of any court that an offence has been committed = or that=20 there are reasonable grounds for suspecting that an offence has = been=20 committed, and that proceedings in respect of the offence have = been=20 instituted or that the offence is being investigated, he may issue = a=20 letter (=93a letter of request=94) requesting assistance in = obtaining outside=20 the State such evidence as is specified in the letter for use in = the=20 proceedings or investigation.=94

6.68

The stolen cultural object would clearly qualify as evidence. The = ability to=20 retain that =93evidence=94 after the prosecution has terminated is, = however,=20 curtailed by section 52(6) which adds that;

=93Evidence obtained by virtue of a letter of request shall not = without=20 the consent of [the authority in the requested State from whom = return is=20 sought] be used for any purpose other than specified in the = letter; and=20 when the evidence is no longer required for that purpose (or for = any other=20 purpose for which such consent has been obtained), it shall=20 be

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returned to such an authority unless that authority indicates = that the=20 document or article need not be = returned.=94

6.69

It is arguable that the letter of request could state that the object = in=20 question would, following the criminal prosecution, be the subject of an = adjudication in the Irish courts as to its ownership. To so argue might, = however, be stretching unduly the bounds of the langauge of the = subsection;=20 deciding the ownership of the object may not constitute a purpose to = which an=20 object may be put as envisaged by the Act, where that object has been=20 re-introduced into the State for an evidentiary purpose.52

6.70

If, however, the letter of request may legitimately list the = determination of=20 ownership as a use to which the evidence secured may be retained, the = consent of=20 the relevant authority of the requested State remains a prerequisite; it = is=20 foreseeable that the authorities of the requested State would not accede = to such=20 a request if the object was in the hands of a person whose title was = protected=20 under the laws of that jurisdiction, e.g., the bona fide = purchaser in a=20 civil law jurisdiction. If the requested authorities of, for example, a = civil=20 law jurisdiction did so accede in order to facilitate criminal law = enforcement=20 in this jurisdiction, it is not envisaged that they would waive any = claim which=20 section 52 grants them to secure the return of the object following the=20 prosecution.

6.71

The above review indicates clearly the limited number of legal routes = for=20 restitution which Irish law offers a dispossessed owner whose object has = been=20 removed to another jurisdiction.

6.72

Recourse to foreign criminal law is an appropriate alternative in = certain=20 circumstances. Thus, for example, if an object which was stolen in = Ireland is=20 =93received=94 or =93handled=94 in another jurisdiction, restitution may = follow=20 conviction for such an offence.53 Benefit = may also=20 be derived from the fact that rules of jurisdiction in criminal law = matters are=20 somewhat more generous in civil law jurisdictions. Thus, it may be = possible for=20 the criminal courts of a civil law country to try a person who allegedly = stole=20 in Ireland. Yet, conversely, the conditions under which the restitution = of such=20 objects following conviction may be secured are more restrictive than = those=20 found in common law jurisdictions, such as section 45(1) of the = Larceny Act,=20 1916 which facilitates the return to the person deemed by the Irish = court to=20 be the owner in all circumstances i.e., whether the object is, at the = time, in=20 the hands of a thief, receiver or bona fide purchaser.54 In = civil law=20 jurisdictions, it is, as a rule, only possible to secure restitution = from the=20 hands of a thief or person who received knowing of the illegal = provenance of the=20 object.

52	This view=20 is reinforced by the fact that the Criminal Justice Act, = 1994=20 is a criminal law statute and must, accordingly, be strictly = construed.

53	Or, indeed,=20 if the object is in England, it may be possible to secure = the return=20 of the object prior to conviction: see Section (1) of the = Police=20 (Property) Act, 1897, para. 7.5=20 infra.

In England,=20 the courts retain a residual discretion to refuse = restitution to an=20 owner. In other jurisdictions =96 traditionally, the civil = law=20 jurisdictions =96 restitution is only possible in the wake = of a=20 criminal conviction if the thief or person who knowingly = received=20 the stolen goods has retained=20 = possession.

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CHAPTER 7: THE PRESENT LAW REGARDING THE RETURN FROM IRELAND OF = OBJECTS=20 STOLEN IN OR ILLEGALLY EXPORTED FROM ANOTHER JURISDICTION

Introduction

7.1

In this Chapter, we examine the means by which return may be secured = of an=20 object brought to Ireland following its theft in or illegal export from = another=20 jurisdiction. As we saw in Chapter 6, when considering the return to = Ireland of=20 a stolen cultural object taken from Ireland, it does not follow from the = fact=20 that an object is in a particular jurisdiction that the courts of that=20 jurisdiction will determine the issue nor that the laws of that = jurisdiction=20 will apply. Thus, although Chapter 6 focuses upon objects located abroad = and=20 this Chapter upon objects in Ireland, it is possible that jurisdiction = may be=20 granted to the same court to determine title in respect of objects, = wherever=20 located.

7.2

It is equally possible that the applicable law governing the = competing claims=20 to the stolen objects could be the same in both circumstances. Thus, a = claimant=20 wishing to secure restitution through a civil action of a stolen object = brought=20 into this jurisdiction must direct his or her attention to the same = legal=20 considerations as a claimant seeking the return of objects which have = travelled=20 illicitly in the opposite direction. When one enters the domain of the = criminal=20 law, however, different considerations apply to objects introduced into = this=20 jurisdiction in consequence of a theft abroad than in the event of a = similar act=20 in this jurisdiction.

A. Restitution Of Stolen Cultural Objects Through Criminal Law=20 Enforcement

7.3

As stated previously, the criminal process is of concern only to the = extent=20 to which it facilitates the restitution of the stolen cultural object, = whether=20 as a by-product of the conviction of the thief or receiver or as a = result of=20 discrete statutory provisions in the Irish criminal law designed to = secure the=20 return to the owner of the stolen object.

7.4

As a general rule, Irish criminal law applies only within this = jurisdiction=20 and in respect of offences committed within its territorial confines. = Thus, as=20 the

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focus of concern is the cultural = object=20 introduced into Ireland in consequence of its theft abroad, the Irish = courts are=20 powerless to try someone who stole abroad. If, however, the object is = =93handled=94=20 in Ireland by someone who knows or believes that it was stolen = abroad,1 the = Irish courts=20 may exercise their criminal jurisdiction. Following conviction, they may = grant=20 an order for restitution to the dispossessed owner. This desired end is = attained=20 by virtue of the use of section 7(1) of The Larceny Act, 1990 in=20 conjunction with section 45(1) of The Larceny Act, 1916 (the = =931916 Act=94)=20 which we have previously considered. Section 7 of the 1990 Act states = that the=20 offence of handling set out in Section 33 of the 1916 Act shall extend = to=20 property stolen outside the State. Upon conviction, the court shall = grant an=20 order for restitution pursuant to section 45(1) of the 1916 Act.

1. The Police (Property) Act, 1897 and the Criminal Justice = Act,=20 1951

7.5

The provisions of the Police (Property) Act, 1897 and the = Criminal=20 Justice Act, 1951, may also be of assistance in the attempt to = retrieve=20 stolen cultural objects. Section 1 of the 1897 Act asserts that:

=93[w]here any property has come into the possession of the = police in=20 connexion with any criminal charge or ... under section 103 of the = Larceny Act, 1861..., a court of summary jurisdiction may, = on=20 application either by an officer of police or by a claimant of = property,=20 make an order for the delivery of the property to the person = appearing to=20 the magistrate or court to be the owner thereof, or if the owner = cannot be=20 ascertained, make such order with respect to the property as to = the=20 magistrate or court may seem fit=94.

7.6

The powers granted to the District Court by section 1 of the = Police=20 (Property) Act, 18972 were = recently=20 applied to restore to a dispossessed owner a Jack B. Yeats painting = which was=20 stolen in England, purchased by the defendant at an auction in London = and then=20 brought to Ireland.3 The = mechanism=20 which it provides for securing the return of stolen cultural objects is = a=20 relatively straight-forward one; unlike a civil action in detinue, there = is no=20 need to have recourse to the intricacies of private international = law.

7.7

Section 103 of the Larceny Act, 1861 provides, inter = alia, that=20 if:

=93any credible witness shall prove upon oath before a Justice = of the=20 Peace a reasonable cause to suspect that any person has in his = possession=20 or on his Premises any Property whatsoever on or with respect to = which any=20 Offence, punishable either upon Indictment or upon=20 Summary

1	The offence=20 of =93handling=94 was created by Section 3 of The Larceny = Act,=20 1990, which inserted a new section 33 into the Larceny = Act,=20 1916, thereby replacing the old offence of=20 =93receiving=94.

2	60 & 61=20 Vict. c.30.

3	Irish=20 Times, September 26, 1995. The brief report did not contain = any=20 assessment of the financial value of the=20 = painting.

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Conviction by virtue of this Act, shall have been committed, = the=20 Justice may grant a Warrant to search for such Property as in the = case of=20 stolen Goods.=94

7.8

A power to seize the specified property accompanies a search = warrant.4 The = powers=20 conferred under section 103 may be exercised whether or not a criminal = charge is=20 pending. Similarly, section 25 of the Criminal Justice Act, 1951 = adds=20 that an order may be made for the disposal of property in the possession = of the=20 Gardai although no person has been charged in connection therewith.

7.9

The 1951 Act applies to property which has come into the possession = of the=20 Gardai in connection with any criminal charge; prior to the = operation of=20 Part VII of the Criminal Justice Act, 1994, and in the absence of = extradition proceedings, the Gardai had authority only to seize objects = in=20 respect of which an offence had been committed in this jurisdiction.=20 Nonetheless, if property which was stolen in another jurisdiction enters = this=20 jurisdiction and is under the control of someone who is handling the = stolen=20 property =93knowing or believing it to be stolen=945 the = Gardai may=20 exercise powers of seizure under the Larceny Acts in respect = thereof.

2. The Convention on Confiscation of the Proceeds of=20 Crime

7.10

With the entry into force of the 1990 Council of Europe Convention = on=20 Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, = Part=20 VII of the Criminal Justice Act, 1994 has become operative. Section = 55(1),=20 for example, enables the Irish authorities to search and seize materials = relevant to investigations in States which are =93designated=94 by the = Government=20 for that purpose:

=93If, on an application made by the Director of Public = Prosecutions or=20 by a member of the Garda Siochana not below the rank of = superintendent, a=20 judge of the District Court is satisfied that there are reasonable = grounds=20 for believing that an offence under the law of a country in = relation to=20 which this section applies has been committed, and the conduct=20 constituting that offence would, if it had occurred in the State,=20 constitute an offence in respect of which the judge would have = power under=20 any enactment to issue a search warrant in relation to any place, = then the=20 judge shall have the same power to issue a search warrant = authorising=20 entry, search and seizure in relation to that place as he would = have under=20 the enactment in question in respect of an offence committed in = the=20 State.

The search=20 warrant may be granted ex parte (State (Batchelor & = Co.=20 (Ireland) Limited) v. District Justice Cathal O'Floinn = [1958] IR=20 155), but the principle of audi alterem partem = demands that,=20 although no specific reference is made to this fact in = section 1=20 itself, the Court must afford the person from whom the = property was=20 seized the opportunity to contest the making of the order, = on the=20 basis of his or her own alleged title in the=20 goods.

5	Section 3=20 of the Larceny Act,=20 = 1990.

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No application for a warrant shall be made under this section = except in=20 pursuance of a direction given by the Minister in response to a = request=20 received by him from the government of a country in relation to = which this=20 section applies and made on behalf of a court or tribunal = exercising=20 criminal jurisdiction in the country in question or a prosecuting=20 authority in that country, or on behalf of any other authority in = that=20 country which appears to the Minister to be an appropriate = authority for=20 the purpose of this section, and any evidence seized by a member = of the=20 Garda Siochana by virtue of this section shall be furnished by him = to the=20 Minister for transmission to the government of the country = concerned or,=20 if that government so requests, to the court, tribunal or = authority for=20 which it has been obtained.=94

7.11

Section 47(1) of the Criminal Justice Act, 1994 is of interest = after=20 the conviction of the accused in a foreign court;

=93The Government may by order designate countries as countries = in whose=20 case orders (referred to in this section as 'forfeiture = cooperation=20 orders') may be made for the forfeiture, in accordance with the = law of the=20 State, of anything in respect of which an offence6 = ... has been=20 committed ... and in respect of which an order (referred to in = this=20 section as an 'external forfeiture order') has been made by a = court in the=20 country in question.=94

7.12

Section 47(2) provides that the High Court may, with the consent of = the=20 Minister, grant such a forfeiture order if satisfied that a number of=20 substantive provisions apply. Section 47(3) states, however,

=93The Court shall not make ... an order ... if a person = claiming to be=20 the owner of the thing in question or otherwise interested in it = applies=20 to be heard by the court unless an opportunity has been given to = him to=20 show cause why the order should not be = made.=94

7.13

The process of return which this section envisages is instigated by = the=20 issuing of an external forfeiture order; one wonders whether a civil law = jurisdiction would issue such an order if the object were in the hands = of a=20 bona fide purchaser, albeit a bona fide purchaser in this=20 jurisdiction. Civil law jurisdictions do not, as a rule, order the = restitution=20 of stolen objects following conviction in their criminal courts when the = object=20 is in the hands of a bona fide purchaser, a situation which is = clearly=20 analogous with that under consideration. Therefore, the usefulness of = section 47=20 may be limited to those situations in which the cultural object is in = the hands=20 of a thief or a receiver in this jurisdiction.

Section=20 47(5) of the Act applies to =93any offence which corresponds = to (a) an=20 offence under the Misuse of Drugs Act, 1977 or (b) a = drug=20 trafficking offence or (c) an offence in respect of which a=20 confiscation order could be made under section 9=94. Section = 9 of the=20 Act sets out the circumstances in which the proceeds from an = offence, other than a drug trafficking offence, may be=20 = confiscated.

<= BR>

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3. Extradition

7.14

It is possible that a person who arrives in Ireland in possession of = a=20 cultural object stolen in a jurisdiction with which Ireland has an = extradition=20 agreement may be extradited to the first jurisdiction for trial. In = Ireland,=20 The Extradition Act, 1965 provides that property apparently = acquired by=20 the commission of the offence for which the return of the accused is = sought may=20 also be returned to the authorities of the State requesting the return = of the=20 accused. Sections 36(1)(b) of the Extradition Act, 1965 provides = that

=93A member of the Garda Siochana executing a warrant [for = extradition]=20 may seize and retain any property which appears to him to have = been=20 acquired as a result of the alleged offence and which is found at = the time=20 of arrest in the possession of the person arrested under the = warrant, or=20 is discovered subsequently.=94

Section 36(2) adds;

=93Subject to the provisions of this section, any property = seized under=20 subsection (1) shall, if an order is issued by the Minister ... = for the=20 surrender of the person claimed, be handed over to any person who = appears=20 to the Minister to be duly authorised to receive it as soon as may = be=20 after the issue of the order and the said property shall be so = handed over=20 notwithstanding that the extradition in question cannot be carried = out by=20 reason of the death or the escape of the person=20 claimed.=94

7.15

If the person extradited is subsequently convicted, restitution may = be=20 obtained pursuant to the jurisdiction's rules governing restitution = following=20 conviction. The fact that restitution will not be ordered following = conviction=20 in civil law jurisdictions if the object is in the hands of a bona = fide=20 purchaser is of no relevance in this regard, as we are essentially = concerned=20 with removing the object from the possession of extradited persons who = are=20 necessarily tainted by the criminal act.7

7.16

The utility of the extradition route as a means for securing the = return of a=20 stolen cultural object is clearly limited. Section 10(1) of the = Extradition=20 Act, 1965 provides that:

=93[E]xtradition shall be granted only in respect of an offence = which is=20 punishable under the laws of the requesting country and of the = State by=20 imprisonment for a maximum period of at least one year or by a = more severe=20 penalty and for which, if there has been a conviction and sentence = in the=20 requesting country, imprisonment for a period of at least=20 four

In the=20 event that it is not necessary to secure the extradition of = the=20 accused to the jurisdiction in which the offence was = allegedly=20 committed =96 because he or she is already present therein = =96 if the=20 object remains in another country, it may be possible to = secure its=20 return via inter-state police co-operation. Again police in = the=20 jurisdiction would surely only facilitate return if the = object were=20 not in the hands of a bona fide=20 = acquirer.

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months or a more severe penalty has been=20 imposed.=94

7.17

Thus, in some jurisdictions, the penalties imposed in other = jurisdictions=20 upon conviction for theft of cultural objects may not be sufficient to = merit=20 extradition from Ireland. As we have noted, however, it does not appear = that the=20 extradition option has ever been availed of to date.

B. The Return Of Illegally Exported Cultural Objects

7.18

In Chapter 6, when considering the removal from this jurisdiction of = objects=20 in breach of Irish export regulations, we found it expedient to = categorise the=20 countries into which the object was brought as Member States and = non-Member=20 States of the European Union. It is expedient to adhere to this = categorisation=20 for the purposes of this Chapter also.

The return of cultural objects brought to Ireland in breach of = the=20 export regulations of a Member State of the European Union

7.19

The procedure adopted in this situation is identical with that = discussed in=20 Chapter 6 in respect of illegally exported objects travelling in the = reverse=20 direction.

The return of cultural objects brought to Ireland in breach of = the=20 export regulations of a non-Member State

7.20

The ability to secure the return of an object, introduced into this=20 jurisdiction in breach of export regulations of a non-EC Member State, = depends,=20 as in the case of objects moving in the opposite direction, upon the = existence=20 of provisions in Irish law which render such imports illegal or = alternatively=20 or, in addition, afford recognition to the foreign export control = regulations=20 violated.

7.21

As we have seen, what is an illegal export from one jurisdiction is = not=20 necessarily an illegal import into another and Irish law accords with = this=20 position.⁸=20 Under the Convention, however, the reluctance to enforce a foreign = public law is=20 dispensed with, recognition of particular categories of laws being = required to=20 be recognised by States acceding thereto.

One=20 exception of sorts to this rule concerns those species which = are the=20 subject of the 1973 Convention on the International Trade = in=20 Endangered Species. Under that Convention, Contracting = Parties=20 are obliged to prohibit the export and import of designated=20 categories of animals. Ireland has ratified this=20 = Convention.

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Conclusion

7.22

The examinations conducted in Chapters 6 and 7 expose the limitations = of the=20 legal mechanisms for securing restitution and return of objects stolen = in or=20 illegally exported from one jurisdiction and, subsequently, brought to = another.=20 A claimant wishing to secure the restitution of a stolen object must = first=20 grapple with the rules of private international law, rules which were = not=20 designed with the protection of cultural heritage in mind and which can, = in=20 fact, often bring about the opposite result.

7.23

The most significant obstacle, however, as the preliminary research = for the=20 Unidroit Convention itself indicated, is the set of rules in civil law = systems=20 which offer protection to a good faith purchaser of stolen cultural = objects and=20 thus facilitate the illicit trade in cultural objects to the detriment = of the=20 dispossessed owner. The fact that a claimant has no connection =96 by = domicile,=20 residence or other factor =96 with any civil law system is immaterial. = As we have=20 seen, the effect of the rules of private international law =96 in = particular the=20 application of the lex rei sitae rule =96 may be such that his or = her claim=20 is subjected to such unfavourable rules. At present, the criminal law = appears to=20 provide even less assistance to the dispossessed owner, although the = Council=20 of Europe Convention on Laundering, Search, Seizure and Confiscation of = the=20 Proceeds from Crime, 1990 should improve the situation.

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CHAPTER 8: CONCLUSION

8.1

With the foundation of the State, cultural heritage was recognised as = a=20 fundamental means of asserting an independent national identity. = Together with=20 promotion of the Irish language, heritage protection was seen as vital = in the=20 development of a =93strong and healthy national spirit=941 and an=20 appreciation of the =93heroism of our forefathers=94:2

=93I do not know anything that stimulates more quickly a sense = of=20 nationality than a sight of one of these monuments. Nothing makes = one more=20 conscious of a national heritage than to see and examine one of = these most=20 beautiful objects which have been passed on to us by those who = lived in=20 the country formerly=94.3

8.2

On a number of occasions in recent years, the State has acted upon = its=20 obligation to provide =93the necessary legislative tools with which to = preserve,=20 protect and foster the heritage of the people.=944

8.3

The issue in approaching the Unidroit Convention is not simply = whether it=20 promotes protection of cultural heritage both nationally and = internationally; it=20 appears beyond doubt that it does this, by contributing to debate on the = importance of such protection and encouraging States to be more vigilant = in=20 regulating and punishing certain activities. The question then is = whether it=20 constitutes a workable framework for claimants within which they may = secure=20 return of objects stolen from them or illegally exported from their=20 jurisdictions.

8.4

Irish law is compatible with the principle on which the Convention is = based,=20 that of favouring the dispossessed owner by ensuring the return to him = or her of=20 stolen cultural objects. The extension of this principle to civil law=20 jurisdictions, together with the imposition of the burden of showing = good=20 faith

1	Parliamentary=20 Debate on the National Monuments Bill, 1929 (Second Stage) = 32=20 Parliamentary Debates col.242, per Mr.=20 Bourke.

2	Ibid.,=20 per Mr. Sheehy, col. 252.

3	Ibid.,=20 per Professor Alton, col. 267.

Per=20 Minister for Arts, Culture and the Gaeltacht, Mr. M. = Higgins,=20 speaking at the Second Stage of the National Monuments=20 (Amendment) Bill, 1993, December 2, 1993, p. 1069. To = date,=20 however, the State has not taken any comparable steps on an=20 international level. Nonetheless, it has endorsed the = concept of=20 =93common heritage of mankind=94, albeit in the context of = International=20 Environmental Conventions. Thus, for example, Ireland has = ratified=20 the Ramzar Convention on Wetlands of International = Importance=20 1971 and Protocol 1972, the Berne Convention on the=20 Conservation of European Wildlife and Natural Habitats,=20 concluded by EC decision 82/461/EEC, OJ L252, 5 September=20 = 1951.

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upon the possessor, will undoubtedly have beneficial consequences. = That the=20 Convention locates the risk of loss firmly with the possessor will = inevitably=20 discourage the current tendency on the part of purchasers not to enquire = into=20 the provenance of objects at the time of purchase. This should impact = negatively=20 on the demand for stolen cultural objects and ultimately upon the rate = of=20 theft.

8.5

Cultural objects exported in breach of export regulations shall be = returned=20 if, but only if, their removal violates one of a number of stated = interests in=20 the object, a compromise situation designed to facilitate international = access=20 to culture to the benefit of foreign communities whilst at the same time = curtailing the disadvantages of excessive international movement. = Bearing in=20 mind the competing interests which shape the Convention, this appears to = represent a satisfactory solution. Not all, however, agree:

=93[T]here should be no lingering hope that UNIDROIT is a = balanced=20 approach. Rather it overwhelmingly leans towards the interests of = some=20 countries and their policies of retention and isolation .... [T]he = free=20 market ... reflect[s] the appropriate fundamental approach to=20 international culture and trade. The motion that we should accept = the=20 parochial view that there is something immoral or otherwise = improper about=20 these values, and endorse a policy where foreign countries can = erect walls=20 to cultural enlightenment and trade, is unthinkable ....=945

8.6

The author, a US lawyer, does not reflect his country's position on = this=20 issue. The US acceded to the UNESCO Convention and has over the last 70 = years=20 introduced increasingly draconian legislation to protect its = archaeological=20 heritage, particularly its Native American heritage. His statement = defers to the=20 principle of =93maximum marketability=94, a concept which predominates = in many=20 Western systems. But even the most staunch defenders have imposed = some=20 modifications on the unfettered operation of the market, often in the = guise of=20 regulation of the international movement of State owned objects or those = emanating from tribal or indigenous communities. The European Union has = likewise=20 recognised the need to deviate from the norms of free movement in this = sphere.=20 Thus, the guiding principle is not one of =93maximum=94, but of = =93optimum=94=20 marketability, a concept which conveys the need for a desirable level of = movement but no more. The Unidroit Convention endorses this approach as = far as=20 illegally exported objects are concerned while at the same time = improving=20 significantly the protection afforded to stolen cultural objects. The = Convention=20 is clearly conducive to the protection of cultural heritage in this and = other=20 jurisdictions.

8.7

Historically Ireland in recent centuries was primarily an = =93importing=94 country=20 in that our great national and private collections contained a diverse = range of=20 cultural objects which originated in other countries and which came to = Ireland=20 in a wide range of methods =96 some of which would now be considered

5	Fitzpatrick,=20 J., The Case Against the Unidroit Convention (Paper = presented=20 at the Conference on Art Theft and its Control, London, 15 = November=20 = 1995).

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unacceptable.

8.8

In this century the wheel has turned and while institutions and = individuals=20 may continue, one hopes legitimately, to import various kinds of = cultural=20 objects, the theft and illegal export of such goods from Ireland has = increased=20 dramatically. This is particularly true of objects of archaeological = interest=20 and has been assisted by the technology of metal detection.

8.9

We believe that the advantages to Ireland, a country with a major = cultural=20 heritage which is in danger, in acceding to the Convention, greatly = outweigh any=20 concerns which arise as to its implementation. As we have seen, Common = Law=20 countries are in a more favourable position with regard to = implementation than=20 those governed by civil law; they are not required to institute measures = which=20 would run counter to long established legal principle, for example, the=20 protection of dispossessed owners. Furthermore, concerns that the = Convention=20 poses a threat to those who have an existing title in cultural objects = are=20 misplaced, given that the Convention will not have retroactive = effect.

8.10

The submissions we received on our Consultation Paper unanimously = supported=20 our provisional recommendation that Ireland should accede to the = Convention. Any=20 reservations therein related to its scope =96 some experts were of the = view that=20 it did not go far enough in terms of the objects covered =96 rather than = to the=20 desirability of accession.

8.11

We recommend that Ireland should accede to the Unidroit Convention = and=20 that legislation be enacted which gives effect to its=20 provisions.

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CHAPTER 9: SUMMARY OF RECOMMENDATIONS

Ireland should accede to the Unidroit Convention on Stolen or = Illegally=20 Exported Cultural Objects.

Ireland should not avail itself of the option, in Article 3(5), of = making a=20 declaration that claims for return of objects forming an integral part = of an=20 identified monument or archaeological site, or belonging to a public = collection=20 shall be subject to a limitation period or 75 years or longer. Such = claims=20 should not be subject to time limitation. (para. 3.65)

We recommend introduction of a provision which states that the = limitation=20 periods provided under the Convention shall have effect in respect of = claims=20 arising under it in place of any other enactment governing the = limitation of=20 actions. (para. 3.64)

Ireland should make a declaration under Article 13(3) that in its = relations=20 with other European Community Member States, it will apply the rules of=20 Community law rather than the Convention where the scope of these rules=20 coincides with the scope of application of the Convention. (para. = 3.159)

Ireland should make a declaration under Article 16(1) nominating the = Minister=20 for Arts, Heritage, the Gaeltacht and the Islands as the central=20 authority to which claims for restitution or requests for return should = be=20 submitted. (para. 3.161)

We recommend that our current law, which does not require = compensation of=20 bona fide purchasers of stolen cultural objects by dispossessed = owners=20 should remain unchanged. (para. 3.86)

We recommend that compensation should be available to a bona = fide=20 possessor of an illegally exported cultural object. The Court hearing = the claim=20 for return should be entitled to order payment by the requesting State = of such=20 compensation as the Court deems =93fair and reasonable=94 in all the = circumstances=20 of the case and provided that the possessor neither knew nor ought = reasonably to=20 have known at the time of the acquisition of the object that it had been = illegally exported. (para. 3.117)

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We recommend that where compensation is sought by a possessor of an = illegally=20 exported cultural object, he or she should bear the burden of proving an = entitlement to it. We further recommend that this should be made = explicit in=20 implementing legislation. (para. 3.125)

We recommend that the standard of proof which should be applied in = claims=20 under the Convention should be the civil standard, that of proof on the = balance=20 of probabilities. We further recommend that a provision to that effect = should be=20 included in implementing legislation. (para. 3.123)

10.

We reiterate our Recommendation, originally made in The Law = Relating to=20 Dishonesty (LRC 43=961992), that legislation should be introduced = which would=20 remove the restriction on larcenability of objects which form part of = realty.=20 (para. 4.24)

11.

We recommend that a provision be enacted clarifying that a landowner = on whose=20 land archaeological objects are found does not constitute an =93owner=94 = for the=20 purposes of the National Monuments Act, 1994 unless he is the = original=20 owner of the object or that person's successor in title. (para. = 4.81)

12.

We recommend introduction of a provision allowing a claimant to rely = on the=20 location of the object as a basis of jurisdiction. (para. 6.21)

13.

We recommend that a regime similar to that available under Regulation = 4(4)=20 and (5) of the European Communities (Return of Cultural Objects) = Regulations,=20 1994 be instituted allowing the State to take possession of an = object the=20 return of which is sought, or to take any other steps it considers = necessary to=20 prevent action to evade return until such time as a determination is = made as to=20 whether the object is to be returned. (para. 6.56)

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BIBLIOGRAPHY

Bell, AP Modern Law of Personal Property in England and = Ireland=20 (Butterworths, 1989)

Binchy, W Irish Conflict of Laws (Butterworths, 1988)

Byrne, P The EEC Convention on Jurisdiction and the Enforcement of = Judgments (Round Hall Press, 1990)

Byrne, R and McCutcheon, P The Irish Legal System (3rd ed., = 1996)

Chatelain, J Means of Combatting the Theft of and Illegal Traffic = in Works=20 of Art in the Nine Countries of the EEC (European Commission, = XII/757/76=96E,=20 1976)

de Varine, H The Rape and Plunder of Cultures: an Aspect of the=20 Deterioration of the Terms of Cultural Trade between Nations (1983) = 35=20 Museum 152

Droz, G The International Protection of Cultural Property from the = Stand-point of Private International Law in International Legal=20 Protection of Cultural Property (Council of Europe, 1984)

Elsen, AE Why Do We Care About Art? 27 Hastings L.J. 951

Fennell, C The Law of Evidence in Ireland (Butterworths, = 1992)

Kelly, JM Hidden Treasure and the Constitution (1988) 10 DULJ = 5

Kelly, JM The Irish Constitution (3rd edition, 1994)

Law Reform Commission Report on the Law Relating to Dishonesty = (LRC=20 43=961992)

Law Reform Commission Report on the United Nations (Vienna) = Convention on=20 Contracts for the Sale of Goods, 1980 (LRC 42=961992)

Law Reform Committee (England and Wales) Twelfth Report: Transfer = of Title=20 to Chattels (1966, Cmnd 2958)

Law Reform Committee (England and Wales) Twenty-first Report: = Final Report=20 on the limitation of actions (1974, Cmnd 6923)

Lyall, A Land Law in Ireland (Oak Tree Press, 1996)

McMahon, B and Binchy, W The Irish Law of Torts (2nd ed., = 1990)

Merryman, JH Thinking About the Elgin Marbles (1985) Michigan = LR=20 1881

Morgan, DG Constitutional Interpretation: Three Cautionary = Tales=20 (1988) 10 DULJ 24

Nicholas, TJ EEC Measures on the Treatment of National Treasures=20 Comparative Law Journal, Nov. 1993

O'Floinn, B and Gannon, S Practice and Procedure in the Superior=20 Courts (Butterworths, 1996)

O'Keefe, P Unlawful Export of Cultural Heritage =96 the = Commonwealth Scheme,=20 the Unidroit Draft and the EEC Directive and Regulation: A = Comparison=20 Meeting of Commonwealth Law Ministers, Mauritius 15=9619 November, 1993, = Memorandum Part I (Commonwealth Secretariat, 1995)

O'Keefe, P and Prott, L Law and the Cultural Heritage, Volume III: = Movement (Butterworths, 1989)

O'Keefe, P and Prott, L National Legal Control of Illicit Traffic = in=20 Cultural Property (UNESCO, 1983)

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Reichelt, G International Protection of Cultural Property = Uniform Law=20 Review (1985) 43

Rodota, S The Civil Aspects of the International Protection of = Cultural=20 Property in International Legal Protection of Cultural = Property=20 (Council of Europe, 1984)

Smith, JC The Law of Theft (5th ed., Butterworths, 1984)

Tubb, K (ed.) Antiquities Trade or Betrayed: legal, ethical and=20 conservation issues (Archetype, 1985)

Turner, JCW (ed.) Kenny's Outlines of the Criminal Law = (Cambridge=20 University Press, 1966)

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APPENDIX A

UNIDROIT CONVENTION ON STOLEN OR ILLEGALLY EXPORTED = CULTURAL=20 OBJECTS

THE STATES PARTIES TO THIS CONVENTION,

ASSEMBLED in Rome at the invitation of the Government of the Italian = Republic=20 from 7 to 24 June 1995 for a Diplomatic Conference for the adoption of = the draft=20 Unidroit Convention on the International Return of Stolen or Illegally = Cultural=20 Objects,

CONVINCED of the fundamental importance of the protection of cultural = heritage and of cultural exchanges for promoting understanding between = peoples,=20 and the dissemination of culture for the well-being of humanity and the = progress=20 of civilisation,

DEEPLY CONCERNED by the illicit trade in cultural objects and the = irreparable=20 damage frequently caused by it, both to theses objects themselves and to = the=20 cultural heritage of national, tribal, indigenous or other communities, = and also=20 to the heritage of all peoples, and in particular by the pillage of=20 archaeological sites and the resulting loss of irreplaceable = archaeological,=20 historical and scientific information,

DETERMINED to contribute effectively to the fight against illicit = trade in=20 cultural objects by taking the important step of establishing common, = minimal=20 legal rules for the restitution and return of cultural objects between=20 Contracting States, with the objective of improving the preservation and = protection of the cultural heritage in the interest of all,

EMPHASISING that this Convention is intended to facilitate the = restitution=20 and return of cultural objects, and that the provision of any remedies, = such as=20 compensation, needed to effect restitution and return in some States, = does not=20 imply that such remedies should be adopted in other States,

AFFIRMING that the adoption of the provisions of this Convention for = the=20 future in no way confers any approval or legitimacy upon illegal = transactions of=20 whatever kind which may have taken place before the entry into force of = the=20 Convention,

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CONSCIOUS that this Convention will not by itself provide a solution = to the=20 problems raised by illicit trade, but that it initiates a process that = will=20 enhance international cultural co-operation and maintain a proper role = for legal=20 trading and inter-State agreements for cultural exchanges.

ACKNOWLEDGING that implementation of this Convention should be = accompanied by=20 other effective measures for protecting cultural objects, such as the=20 development and use of registers, the physical protection of = archaeological=20 sites and technical co-operation,

RECOGNISING the work of various bodies to protect cultural property,=20 particularly the 1970 UNESCO Convention on illicit traffic and the = development=20 of codes of conduct in the private sector,

HAVE AGREED as follows:

CHAPTER I =96 SCOPE OF APPLICATION AND DEFINITION

Article 1

This Convention applies to claims of an international character = for:

(a)	the restitution of stolen cultural=20 objects;

(b)	the return of cultural objects removed from the territory = of a=20 Contracting State contrary to its law regulating the export = of=20 cultural objects for the purpose of protecting its cultural = heritage=20 (hereinafter =93illegally exported cultural=20 = objects=94).

Article 2

For the purposes of this Convention, cultural objects are those = which, on=20 religious or secular grounds, are of importance for archaeology, = prehistory,=20 history, literature, art or science and belong to one of the categories = listed=20 in the Annex to this Convention.

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CHAPTER II =96 RESTITUTION OF STOLEN CULTURAL OBJECTS

Article 3

(1) The possessor of a cultural object which has been stolen shall = return=20 it.

(2) For the purposes of this Convention, a cultural object which has = been=20 unlawfully excavated or lawfully excavated but unlawfully retained shall = be=20 considered stolen, when consistent with the law of the State where the=20 excavation took place.

(3) Any claim for restitution shall be brought within a period of = three years=20 from the time when the claimant knew the location of the cultural object = and the=20 identity of its possessor, and in any case within a period of fifty = years from=20 the time of the theft.

(4) However, a claim for restitution of a cultural object forming an = integral=20 part of an identified monument or archaeological site, or belonging to a = public=20 collection, shall not be subject to time limitations other than a period = of=20 three years from the time when the claimant knew the location of the = cultural=20 object and the identify of its possessor.

(5) Notwithstanding the provisions of the preceding paragraph, any=20 Contracting State may declare that a claim is subject to a time = limitation of 75=20 years or such longer period as is provided in its law. A claim made in = another=20 Contracting State for restitution of a cultural object displaced from a=20 monument, archaeological site or public collection in a Contracting = State making=20 such a declaration shall also be subject to that time limitation.

(6) A declaration referred to in the preceding paragraph shall be = made at the=20 time of signature, ratification, acceptance, approval or accession.

(7) For the purposes of this Convention, a =93public collection=94 = consists of a=20 group of inventoried or otherwise identified cultural objects owned = by:

(a)	a Contracting State;

(b)	a regional or local authority of a Contracting=20 State;

(c)	a religious institution in a Contracting State;=20 or

(d)	an institution that is established for an essentially = cultural,=20 educational or scientific purpose in a Contracting State and = is=20 recognised in that State as serving the public=20 = interest.

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(8) In addition, a claim for restitution of a sacred or communally = important=20 cultural object belonging to and used by a tribal or indigenous = community in a=20 Contracting State as part of that community's traditional or ritual use, = shall=20 be subject to the time limitation applicable to public collections.

Article 4

(1) The possessor of a stolen cultural object required to return it = shall be=20 entitled, at the time of its restitution, to payment of fair and = reasonable=20 compensation provided that the possessor neither knew nor ought = reasonably to=20 have known that the object was stolen and can prove that it exercised = due=20 diligence when acquiring the object.

(2) Without prejudice to the right of the possessor to compensation = referred=20 to in the preceding paragraph, reasonable efforts shall be made to have = the=20 person who transferred the cultural object to the possessor, or any = prior=20 transferor, pay the compensation where to do so would be consistent with = the law=20 of the State in which the claim is brought.

(3) Payment of compensation to the possessor by the claimant, when = this is=20 required, shall be without prejudice to the right of the claimant to = recover it=20 from any other person.

(4) In determining whether the possessor exercised due diligence, = regard=20 shall be had to all the circumstances of the acquisition, including the=20 character of the parties, the price paid, whether the possessor = consulted any=20 reasonably accessible register of stolen cultural objects, and any other = relevant information and documentation which it could reasonably have = obtained,=20 and whether the possessor consulted accessible agencies or took any = other step=20 that a reasonable person would have taken in the circumstances.

(5) The possessor shall not be in a more favourable position than the = person=20 from whom it acquired the cultural object by inheritance or otherwise=20 gratuitously.

CHAPTER III =96 RETURN OF ILLEGALLY EXPORTED CULTURAL = OBJECTS

Article 5

(1) A Contracting State may request the court or other competent = authority of=20 another Contracting State to order the return of a cultural object = illegally=20 exported from the territory of the requesting State.

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(2) A cultural object which has been temporarily exported from the = territory=20 of the requesting State, for purposes such as exhibition, research or=20 restoration, under a permit issued according to its law regulating its = export=20 for the purpose of protecting its cultural heritage and not returned in=20 accordance with the terms of that permit shall be deemed to have been = illegally=20 exported.

(3) The court or other competent authority of the State addressed = shall order=20 the return of an illegally exported cultural object if the requesting = State=20 establishes that the removal of the object from its territory = significantly=20 impairs one or more of the following interests:

(a)	the physical preservation of the object or of its=20 context;

(b)	The integrity of a complex = object;

(c)	the preservation of information of, for example, a = scientific or=20 historical character;

(d)	the traditional or ritual use of the object by a tribal = or=20 indigenous community, or establishes that the object is of significant cultural = importance for the requesting=20 State.

(4) Any request made under paragraph 1 of this article shall contain = or be=20 accompanied by such information of a factual or legal nature as may = assist the=20 court or other competent authority of the State addressed in determining = whether=20 the requirements of paragraphs 1 to 3 have been met.

(5) Any request for return shall be brought within a period of three = years=20 from the time when the requesting State knew the location of the = cultural object=20 and the identity of its possessor, and in any case within a period of = fifty=20 years from the date of the export or from the date on which the object = should=20 have been returned under a permit referred to in paragraph 2 of this=20 Article.

Article 6

(1) The possessor of a cultural object who acquired the object after = it was=20 illegally exported shall be entitled, at the time of its return, to = payment by=20 the requesting State of fair and reasonable compensation, provided that = the=20 possessor neither knew nor ought reasonably to have known at the time of = acquisition that the object had been illegally exported.

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(2) In determining whether the possessor knew or ought reasonably to = have=20 known that the cultural object had been illegally exported, regard shall = be had=20 to the circumstances of the acquisition, including the absence of an = export=20 certificate required under the law of the requesting State.

(3) Instead of compensation, and in agreement with the requesting = State, the=20 possessor required to return the cultural object to that State, may = decide:

(a)	to retain ownership of the object; = or

(b)	to transfer ownership against payment or gratuitously to = a person=20 of its choice residing in the requesting State who provides = the=20 necessary = guarantees.

(4) The cost of returning the cultural object in accordance with this = article=20 shall be borne by the requesting State, without prejudice to the right = of that=20 State to recover costs from any other person.

(5) The possessor shall not be in a more favourable position than the = person=20 from whom it acquired the cultural object by inheritance or otherwise=20 gratuitously.

Article 7

(1) The provisions of this Chapter shall not apply where:

(a)	the export of a cultural object is no longer illegal at = the time=20 at which the return is requested; = or

(b)	the object was exported during the lifetime of the person = who=20 created it or within a period of fifty years following the = death of=20 that = person.

(2) Notwithstanding the provisions of sub-paragraph (b) of the = preceding=20 paragraph, the provisions of this Chapter shall apply where a cultural = object=20 was made by a member or members of a tribal or indigenous community for=20 traditional or ritual use by that community and the object will be = returned to=20 that community.

CHAPTER IV =96 GENERAL PROVISIONS

Article 8

(1) A claim under Chapter II and a request under Chapter III may be = brought=20 before the courts or other competent authorities of the

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Contracting State where the = cultural object is=20 located, in addition to the courts or other competent authorities = otherwise=20 having jurisdiction under the rules in force in Contracting States.

(2) The parties may agree to submit the dispute to any court or other = competent authority or to arbitration.

(3) Resort may be had to the provisional, including protective, = measures=20 available under the law of the Contracting State where the object is = located=20 even when the claim for restitution or request for return of the object = is=20 brought before the courts or other competent authorities of another = Contracting=20 State.

Article 9

(1) Nothing in this Convention shall prevent a Contracting State from = applying any rules more favourable to the restitution or the return of = stolen or=20 illegally exported cultural objects than provided for by this = Convention.

(2) This article shall not be interpreted as creating an obligation = to=20 recognise or enforce a decision of a court or other competent authority = of=20 another Contracting State that departs from the provisions of this=20 Convention.

Article 10

(1) The provisions of Chapter II shall apply only in respect of a = cultural=20 object that is stolen after this Convention enters into force in respect = of the=20 State where the claim is brought, provided that:

(a)	the object was stolen from the territory of a Contracting = State=20 after the entry into force of this Convention for that = State;=20 or

(b)	the object is located in a Contracting State after the = entry into=20 force of the Convention for that=20 State.

(2) The provisions of Chapter III shall apply only in respect of a = cultural=20 object that is illegally exported after this Convention enters into = force for=20 the requesting State as well as the State where the request is = brought.

(3) This Convention does not in any way legitimise any illegal = transaction of=20 whatever nature which has taken place before the entry into force of = this=20 Convention or which is excluded under paragraphs (1) or (2) of this = article, nor=20 limit any right of a State or other person to make a claim under = remedies=20 available outside the framework of this Convention for the restitution = or return=20 of a cultural object stolen or illegally exported before the entry into = force of=20 this Convention.

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CHAPTER V =96 FINAL PROVISIONS

Article 11

(1) This Convention is open for signature at the concluding meeting = of the=20 Diplomatic Conference for the adoption of the draft Unidroit Convention = on the=20 International Return of Stolen or Illegally Exported Cultural Objects = and will=20 remain open for signature by all States at Rome until 30 June 1996.

(2) This Convention is subject to ratification, acceptance or = approval by=20 States which have signed it.

(3) This Convention is open for accession by all States which are not = signatory States as from the date it is open for signature.

(4) Ratification, acceptance, approval or accession is subject to the = deposit=20 of a formal instrument to that effect with the depositary.

Article 12

(1) This Convention shall enter into force on the first day of the = sixth=20 month following the date of deposit of the fifth instrument of = ratification,=20 acceptance, approval or accession.

(2) For each State that ratifies, accepts, approves or accedes to = this=20 Convention after the deposit of the fifth instrument of ratification,=20 acceptance, approval or accession, this Convention shall enter into = force in=20 respect of that State on the first day of the sixth month following the = date of=20 deposit of its instrument of ratification, acceptance, approval or=20 accession.

Article 13

(1) This Convention does not affect any international instrument by = which any=20 Contracting State is legally bound and which contains provisions on = matters=20 governed by this Convention, unless a contrary declaration is made by = the States=20 bound by such instrument.

(2) Any Contracting State may enter into agreements with one or more=20 Contracting States, with a view to improving the application of this = Convention=20 in their mutual relations. The States which have concluded such an = agreement=20 shall transmit a copy to the depositary.

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(3) In their relations with each other, Contracting States which are = Members=20 of organisations of economic integration or regional bodies may declare = that=20 they will apply the internal rules of these organisations or bodies and = will not=20 therefore apply as between these States the provisions of this = Convention the=20 scope of application of which coincides with that of those rules.

Article 14

(1) If a Contracting State has two or more territorial units, whether = or not=20 possessing different systems of law applicable in relation to the = matters dealt=20 with in this Convention, it may, at the time of signature or of the = deposit of=20 its instrument of ratification, acceptance, approval or accession, = declare that=20 this Convention is to extend to all its territorial units or only to one = or more=20 of them, and may substitute for its declaration another declaration at = any=20 time.

(2) These declarations are to be notified to the depositary and are = to state=20 expressly the territorial units to which the Convention extends.

(3) If, by virtue of a declaration under this article, this = Convention=20 extends to one or more but not all of the territorial units of a = Contracting=20 State, the reference to:

(a)	the territory of a Contracting State in Article 1 shall = be=20 construed as referring to the territory of a territorial = unit of=20 that State;

(b)	a court or other competent authority of the Contracting = State or=20 of the State addressed shall be construed as referring to = the court=20 or other competent authority of a territorial unit of that=20 State;

(c)	the Contracting State where the cultural object is = located in=20 Article 8 (1) shall be construed as referring to the = territorial=20 unit of that State where the object is=20 located;

(d)	the law of the Contracting State where the object is = located in=20 Article 8 (3) shall be construed as referring to the law of = the=20 territorial unit of that State where the object is located;=20 and

(e)	a Contracting State in Article 9 shall be construed as = referring=20 to a territorial unit of that=20 State.

(4) If a Contracting State makes no declaration under paragraph 1 of = this=20 article, this Convention is to extend to all territorial units of that=20 State.

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Article 15

(1) Declarations made under this Convention at the time of signature = are=20 subject to confirmation upon ratification, acceptance or approval.

(2) Declarations and confirmations of declarations are to be in = writing and=20 to be formally notified to the depositary.

(3) A declaration shall take effect simultaneously with the entry = into force=20 of this Convention in respect of the State concerned. However, a = declaration of=20 which the depositary receives formal notification after such entry into = force=20 shall take effect on the first day of the sixth month following the date = of its=20 deposit with the depositary.

(4) Any State which makes a declaration under this Convention may = withdraw it=20 at any time by a formal notification in writing addressed to the = depositary.=20 Such withdrawal shall take effect on the first day of the sixth month = following=20 the date of the deposit of the notification.

Article 16

(1) Each Contracting State shall at the time of signature, = ratification,=20 acceptance, approval or accession, declare that claims for the = restitution, or=20 requests for the return, of cultural objects brought by a State under = Article 8=20 may be submitted to it under one or more of the following = procedures:

(a)	directly to the courts or other competent authorities of = the=20 declaring State;

(b)	through an authority or authorities designated by that = State to=20 receive such claims or requests and to forward them to the = courts or=20 other competent authorities of that = State;

(c)	through diplomatic or consular=20 channels.

(2) Each Contracting State may also designate the courts or other = authorities=20 competent to order the restitution or return of cultural objects under = the=20 provisions of Chapters II and III.

(3) Declarations made under paragraphs 1 and 2 of this article may be = modified at any time by a new declaration.

(4) The provisions of paragraphs 1 to 3 of this article do not affect = bilateral or multilateral agreements on judicial assistance in respect = of civil=20 and commercial matters that may exist between Contracting = States.

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Article 17

Each Contracting State shall, no later than six months following the = date of=20 deposit of its instrument of ratification, acceptance, approval or = accession,=20 provide the depositary with written information in one of the official = languages=20 of the Convention concerning the legislation regulating the export of = its=20 cultural objects. This information shall be updated from time to time as = appropriate.

Article 18

No reservations are permitted except those expressly authorised in = this=20 Convention.

Article 19

(1) This Convention may be denounced by any State Party, at any time = after=20 the date on which it enters into force for that State, by the deposit of = an=20 instrument to that effect with the depositary.

(2) A denunciation shall take effect on the first day of the sixth = month=20 following the deposit of the instrument of denunciation with the = depositary.=20 Where a longer period for the denunciation to take effect is specified = in the=20 instrument of denunciation it shall take effect upon the expiration of = such=20 longer period after its deposit with the depositary.

(3) Notwithstanding such a denunciation, this Convention shall = nevertheless=20 apply to a claim for restitution or a request for return of a cultural = object=20 submitted prior to the date on which the denunciation takes effect.

Article 20

The President of the International Institute for the Unification of = Private=20 Law (Unidroit) may at regular intervals, or at any time at the request = of five=20 Contracting States, convene a special committee in order to review the = practical=20 operation of this Convention.

Article 21

(1) This Convention shall be deposited with the Government of the = Italian=20 Republic.

(2) The Government of the italian Republic shall:

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(a)	inform all States which have signed or acceded to this = Convention=20 and the President of the International Institute for the = Unification=20 of private Law (Unidroit) of:

(i)

each new signature or deposit of an instrument of = ratification,=20 acceptance, approval or accession, together with the date=20 thereof;

(ii)

each declaration made in accordance with this=20 Convention;

(iii)

the withdrawal of any = declaration;

(iv)

the date of entry into force of this=20 Convention;

(v)

the agreements referred to in Article = 13;

(vi)

the deposit of an instrument of denunciation of this = Convention=20 together with the date of its deposit and the date on which = it takes=20 effect;

(b)	transmit certified true copies of this Convention to all=20 signatory States, to all States acceding to this Convention = and to=20 the President of the International Institute for the = Unification of=20 Private Law (Unidroit);

(c)	perform such other functions customary for=20 = depositaries.

IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly = authorised,=20 have signed this Convention.

DONE at Rome, this twenty-fourth day of June, one thousand nine = hundred and=20 ninety five, in a single original, in the English and French languages, = both=20 texts being equally authentic.

Annex

(a)	Rare collections and specimens of fauna, flora, minerals = and=20 anatomy, and objects of palaeontological=20 interest;

(b)	Property relating to history, including the history of = science=20 and technology and military and social history, to the life = of=20 national leaders, thinkers, scientists and artists and to = events of=20 national importance;

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(c)	Products of archaeological excavations (including regular = and=20 clandestine) or of archaeological=20 discoveries;

(d)	Elements of artistic or historical monuments or = archaeological=20 sites which have been = dismembered;

(e)	Antiquities more than one hundred years old, such as=20 inscriptions, coins and engraved = seals;

(f)	Objects of ethnological = interest;

(g)	Property of artistic interest, such = as:

(i)

pictures, paintings and drawings produced entirely by = hand on any=20 support and in any material (excluding industrial designs = and=20 manufactured articles decorated by = hand);

(ii)

original works of statuary art and sculpture in any=20 material;

(iii)

original engravings, prints and=20 lithographs;

(iv)

original artistic assemblages and montages in any=20 material;

(h)	Rare manuscripts and incunabula, old books, documents and = publications of special interest (historical, artistic, = scientific,=20 literary, etc.;) singly or in = collections;

(i)	Postage, revenue and similar stamps, singly or in=20 collections,

(j)	Archives, including sound, photographic and = cinematographic=20 archives;

(k)	Articles of furniture more than one hundred years old and = old=20 musical=20 instruments.

<= BR>

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APPENDIX B

UNESCO CONVENTION ON THE MEANS OF PROHIBITING AND = PREVENTING=20 THE ILLICIT IMPORT, EXPORT AND TRANSFER OF OWNERSHIP OF CULTURAL=20 PROPERTY

The General Conference of the United Nations Educational, Scientific = and=20 Cultural Organization, meeting in Paris from 12 October to 14 November = 1970, at=20 its sixteenth session,

Recalling the importance of the provisions contained in the=20 Declaration of the Principles of International Co-operation, adopted by = the=20 General Conference at its fourteenth session,

Considering that the interchange of cultural property among = nations=20 for scientific, cultural and educational purposes increases the = knowledge of the=20 civilization of Man, enriches the cultural life of all peoples and = inspires=20 mutual respect and appreciation among nations,

Considering that cultural property constitutes one of the = basic=20 elements of civilization and national culture, and that its true value = can be=20 appreciated only in relation to the fullest possible information = regarding its=20 origin, history and traditional setting,

Considering that it is incumbent upon every State to protect = the=20 cultural property existing within its territory against the dangers of = theft,=20 clandestine excavation, and illicit export,

Considering that, to avert these dangers, it is essential for = every=20 State to become increasingly alive to the moral obligations to respect = its own=20 cultural heritage and that of all nations,

Considering that, as cultural institutions, museums, libraries = and=20 archives should ensure that their collections are built up in accordance = with=20 universally recognized moral principles,

Considering that the illicit import, export and trasfer of = ownership=20 of cultural property is an obstacle to that understanding between = nations which=20 it is part of Unesco's mission to promote by recommending to interested = States,=20 international conventions to this end,

Considering that the protection of cultural heritage can be = effective=20 only if organized both nationally and internationally among States = working in=20 close cooperation,

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Considering that the Unesco Genreal Conference adopted a=20 Recommendation to this effect in 1964,

Having before it further proposals on the means of prohibiting = and=20 preventing the illicit import, export and transfer of ownership of = cultural=20 property, a question which is on the agenda for the session as item = 19,

Having decided, at its fifteenth session, that this question = should be=20 made the subject of an international convention,

Adopts this Convention on the fourteenth day of November = 1970.

Article 1

For the purposes of this Convention, the term 'cultural property' = means=20 property which, on religious or secular grounds, is specifically = designated by=20 each State as being of importance for archaeology, prehistory, history,=20 literature, art or science and which belongs to the following = categories:

(a)	rare collections and specimens of fauna, flora, minerals = and=20 anatomy, and objects of palaeontological=20 interest;

(b)	property relating to history, including the history of = science=20 and technology and military and social history, to the life = of=20 national leaders, thinkers, scientists and artists and to = events of=20 national importance;

(c)	products of archaeological excavations (including regular = and=20 clandestine) or of archaeological=20 discoveries;

(d)	elements of artistic or historical monuments or = archaeological=20 sites which have been = dismembered;

(e)	antiquities more than one hundred years old, such as=20 inscriptions, coins and engraved = seals;

(f)	objects of ethnological = interest;

(g)	property of artistic interest, such = as:

(i)

pictures, paintings and drawings produced entirely by = hand on any=20 support and in any material (excluding industrial designs = and=20 manufactured articles decorated by = hand);

(ii)

original works of statuary art and sculpture in any=20 material;

(iii)

original engravings, prints and=20 lithographs;

(iv)

original artistic assemblages and montages in any=20 material;

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(h)	rare manuscripts and incunabula, old books, documents and = publications of special interest (historical, artistic, = scientific,=20 literary, etc.;) singly or in = collections;

(i)	postage, revenue and similar stamps, singly or in=20 collections,

(j)	archives, including sound, photographic and = cinematographic=20 archives;

(k)	articles of furniture more than one hundred years old and = old=20 musical = instruments.

Article 2

The States Parties to this Convention recognize that the illicit = import,=20 export and transfer of ownership of cultural property is one of the main = causes=20 of the impoverishment of the cultural heritage of the countries of = origin of=20 such property and that international co-operation constitutes one of the = most=20 efficient means of protecting each country's cultural property against = all the=20 dangers resulting therefrom.

To this end, the States Parties undertake to oppose such practices = with the=20 means at their disposal, and particularly by removing their causes, = putting a=20 stop to current practices, and by helping to make the necessary = reparations.

Article 3

The import, export or transfer of ownership of cultural property = effected=20 contrary to the provisions adopted under this Convention by the States = Parties=20 thereto, shall be illicit.

Article 4

The States Parties to this Convention recognize that for the purpose = of the=20 Convention property which belongs to the following categories forms part = of the=20 cultural heritage of each State:

(a)	Cultural property created by the individual or collective = genius=20 of nationals of the State concerned, and cultural property = of=20 importance to the State concerned created within the = territory of=20 that State by foreign nationals or stateless persons = resident within=20 such territory;

(b)	cultural property found within the national=20 territory;

(c)	cultural property acquired by archaeological, = ethnological or=20 natural science missions, with the consent of the competent=20 authorities of the country of origin of such=20 property;

(d)	cultural property which has been the subject of a freely = agreed=20 exchange;

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(e)	cultural property received as a gift or purchased legally = with=20 the consent of the competent authorities of the country of = origin of=20 such = property.

Article 5

To ensure the protection of their cultural property against illicit = import,=20 export and transfer of ownership, the States Parties to this Convention=20 undertake, as appropriate for each country, to set up within their = territories=20 one or more national services, where such services don not already = exist, for=20 the protection of the cultural heritage, with a qualified staff = sufficient in=20 number for the effective carrying out of the following functions:

(a)	Contributing to the formation of draft laws and = regulations=20 designed to secure the protection of the cultural heritage = and=20 particularly prevention of the illicit import, export and = transfer=20 of ownership of important cultural = property;

(b)	establishing and keeping up to date, on the basis of a = national=20 inventory of protected property, a list of important public = and=20 private cultural property whose export would constitute an=20 appreciable impoverishment of the national cultural=20 heritage;

(c)	promoting the development or the establishment of = scientific and=20 technical institutions (museums, libraries, archives, = laboratories,=20 workshops) required to ensure the preservation and = presentation of=20 cultural property;

(d)	organizing the supervision of archaeological excavations, = ensuring the preservation 'in situ' of certain cultural = property,=20 and protecting certain areas reserved for future = archaeological=20 research;

(e)	establishing, for the benefit of those concerned = (curators,=20 collectors, antique dealers, etc.) rules in conformity with = the=20 ethical principles set forth in this Convention; and taking = steps to=20 ensure the observance of those = rules;

(f)	taking educational measures to stimulate and develop = respect for=20 the cultural heritage of all States, and spreading knowledge = of the=20 provisions of this Convention;

(g)	seeing that appropriate publicity is given to the = disappearance=20 of any items of cultural=20 property.

Article 6

The States Parties to this Convention undertake:

(a)	to introduce an appropriate certificate in which the = exporting=20 State

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would specify that the export of the cultural property in = question is authorized. The certificate should accompany all = items=20 of cultural property exported in accordance with the=20 regulations;

(b)	to prohibit the exportation of cultural property from = their=20 territory unless accompanied by the above-mentioned export=20 certificate;

(c)	to publicize this prohibition by appropriate means, = particularly=20 among persons likely to export or import cultural=20 = property.

Article 7

The States Parties to this Convention undertake:

(a)

To take the necessary measures, consistent with national=20 legislation, to prevent museums and similar institutions = within=20 their territories from acquiring cultural property = originating in=20 another State Party which has been illegally exported after = entry=20 into force of this Convention, in the States concerned. = Whenever=20 possible, to inform a State of origin Party to this = Convention of an=20 offer of such cultural property illegally removed from that = State=20 after the entry into force of this Convention in both=20 States;

(b)

(i)

to prohibit the import of cultural property stolen from a = museum=20 or a religious or secular public monument or similar = institution in=20 another State Party to this Convention after the entry into = force of=20 this Convention for the States concerned, provided that such = property is documented as appertaining to the inventory of = that=20 institution;

(ii)

at the request of the State Party of origin, to take = appropriate=20 steps to recover and return any such cultural property = imported=20 after the entry into force of this Convention in both States = concerned, provided, however, that the requesting State = shall pay=20 just compensation to an innocent purchaser or to a person = who has=20 valid title to that property. Requests for recovery and = return shall=20 be made through diplomatic offices. The requesting Party = shall=20 furnish, at its expense, the documentation and other = evidence=20 necessary to establish its claim for recovery and return. = The=20 Parties shall impose no customs duties or other charges upon = cultural property returned pursuant to this Article. All = expenses=20 incident to the return and delivery of the cultural property = shall=20 be borne by the requesting=20 Party.

Article 8

The States Parties to this Convention undertake to impose penalties = or=20 administrative sanctions on any person responsible for infringing the=20 prohibitions referred to under Articles 6(b) and 7(b) above.

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Article 9

Any State Party to this Convention whose cultural patrimony is in = jeopardy=20 from pillage of archaeological or ethnological materials may call upon = other=20 States Parties who are affected. The States Parties to this Convention=20 undertake, in these circumstances, to participate in a concerted = international=20 effort to determine and to carry out the necessary concrete measures, = including=20 the control of exports and imports and international commerce in the = specific=20 materials concerned. Pending agreement each State concerned shall take=20 provisional measures to the extent feasible to prevent irremediable = injury to=20 the cultural heritage of the requesting State.

Article 10

The States Parties to this Convention undertake:

(a)

To restrict by education, information and vigilance, = movement of=20 cultural property illegally removed from any State Party to = this=20 Convention and, as appropriate for each country, oblige = antique=20 dealers, subject to penal or administrative sanctions, to = maintain a=20 register recording the origin of each item of cultural = property,=20 names and addresses of the supplier, description and price = of each=20 item sold and to inform the purchaser of the cultural = property of=20 the export prohibition to which such property may be=20 subject;

(b)	to endeavour by educational means to create and develop = in the=20 public mind a realization of the value of cultural property = and the=20 threat to the cultural heritage created by theft, = clandestine=20 excavations and illicit=20 exports.

Article 11

The export and transfer of ownership of cultural property under = compulsion=20 arising directly or indirectly from the occupation of a country by a = foreign=20 power shall be regarded as illicit.

Article 12

The States Parties to this Convention shall respect the cultural = heritage=20 within the territories for the international relations of which they are = responsible, and shall take all appropriate measures to prohibit and = prevent the=20 illicit import, export and transfer of ownership of cultural property in = such=20 territories.

Article 13

The States Parties to this Convention also undertake, consistent with = the=20 laws of each State:

(a)	To prevent by all appropriate means transfers of = ownership of=20 cultural

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property likely to promote the illicit import or export = of such=20 property;

(b)	to ensure that their competent services co-operate in=20 facilitating the earliest possible restitution of illicitly = exported=20 cultural property to its rightful = owner;

(c)	to admit actions for recovery of lost or stolen items of = cultural=20 property brought by or on behalf of the rightful=20 owners;

(d)

to recognize the indefeasible right of each State Party = to this=20 Convention to classify and declare certain cultural property = as=20 inalienable which should therefore ipso facto not be=20 exported, and to facilitate recovery of such property by the = State=20 concerned in cases where it has been=20 exported.

Article 14

In order to prevent illicit export and to meet the obligations = arising from=20 the implementation of this Convention, each State Party to the = Convention=20 should, as far as it is able, provide the national services responsible = for the=20 protection of its cultural heritage with an adequate budget and, if = necessary,=20 should set up a fund for this purpose.

Article 15

Nothing in this Convention shall prevent States Parties thereto from=20 concluding special agreements among themselves or from continuing to = implement=20 agreements already concluded regarding the restitution of cultural = property=20 removed, whatever the reason, from its territory of origin, before the = entry=20 into force of this Convention for the States concerned.

Article 16

The States Parties to this Convention shall in their periodic reports = submitted to the General Conference of the United Nations Educational,=20 Scientific and Cultural Organization on dates and in a manner to be = determined=20 by it, give information on the legislative and administrative provisions = which=20 they have adopted and other action which they have taken for the = application of=20 this Convention, together with details of the experience acquired in = this=20 field.

Article 17

The States Parties to this Convention may call on the technical = assistance of=20 the United Nations Educational, Scientific and Cultural Organization,=20 particularly as regards:

(a)	information and education;

(b)	consultation and expert = advice;

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(c)	co-ordination and good=20 offices.

The United Nations Educational, Scientific and Cultural Organization = may, on=20 its own initiative, conduct research and publish studies on matters = relevant to=20 the illicit movement of cultural property.

To this end, the United Nations Educational, Scientific and Cultural=20 Organization may also call on the co-operation of any competent = non-governmental=20 organization.

The United Nations Educational, Scientific and Cultural Organization = may, on=20 its own initiative, make proposals to States Parties to this Convention = for its=20 implementation.

At the request of at least two States Parties to this Convention = which are=20 engaged in a dispute over its implementation, Unesco may extend its good = offices=20 to reach a settlement between them.

Article 18

This Convention is drawn up in English, French, Russian and Spanish, = the four=20 texts being equally authoritative.

Article 19

This Convention shall be subject to ratification or acceptance by = States=20 members of the United Nations Educational, Scientific and Cultural = Organization=20 in accordance with their respective constitutional procedures.

The instruments of ratification or acceptance shall be deposited with = the=20 Director-General of the United Nations Educational, Scientific and = Cultural=20 Organization.

Article 20

This Convention shall be open to accession by all States not members = of the=20 United Nations Educational, Scientific and Cultural Organization which = are=20 invited to accede to it by the Executive Board of the Organization.

Accession shall be effected by the deposit of an instrument of = accession with=20 the Director-General of the United Nations Educational, Scientific and = Cultural=20 Organization.

Article 21

This Convention shall enter into force three months after the date of = the=20 deposit

THIS IS AN ORIGINAL=20 PAGE-BREAK: PAGE = NUMBER=3D152=20

of the third instrument of = ratification,=20 acceptance or accession, but only with respect to those States which = have=20 deposited their respective instruments on or before that date. It shall = enter=20 into force with respect to any other State three months after the = deposit of its=20 instrument of ratification, acceptance or accession.

Article 22

The States Parties to this Convention recognize that the Convention = is=20 applicable not only to their metropolitan territories but also to all=20 territories for the international relations of which they are = responsible; they=20 undertake to consult, if necessary, the governments or other competent=20 authorities of these territories on or before ratification, acceptance = or=20 accession with a view to securing the application of the Convention to = those=20 territories, and to notify the Director-General of the United Nations=20 Educational, Scientific and Cultural Organization of the territories to = which it=20 is applied, the notification to take effect three months after the date = of its=20 receipt.

Article 23

Each State Party to this Convention may denounce the Convention on = its own=20 behalf or on behalf of any territory for whose international relations = it is=20 responsible.

The denunciation shall be notified by an instrument in writing, = deposited=20 with the Director-General of the United Nations Educational, Scientific = and=20 Cultural Organization.

The denunciation shall take effect twelve months after the receipt of = the=20 instrument of denunciation.

Article 24

The Director-General of the United Nations Educational, Scientific = and=20 Cultural Organization shall inform the States members of the = Organization, the=20 States not members of the Organization which are referred to in Article = 20, as=20 well as the United Nations, of the deposit of all the instruments of=20 ratification, acceptance and accession provided for in Articles 19 and = 20, and=20 of the notifications and denunciations provided for in Articles 22 and = 23=20 respectively.

Article 25

This Convention may be revised by the General Conference of the = United=20 Nations Educational, Scientific and Cultural Organization. Any such = revision=20 shall, however, bind only the States which shall become Parties to the = revising=20 convention.

If the General Conference should adopt a new convention revising this = Convention in whole or in part, then, unless the new = convention

THIS IS AN ORIGINAL=20 PAGE-BREAK:

PAGE = NUMBER=3D153=20

otherwise provides, this Convention shall cease to be open to = ratification,=20 acceptance or accession, as from the date on which the new revising = convention=20 enters into force.

Article 26

In conformity with Article 102 of the Charter of the United Nations, = this=20 Convention shall be registered with the Secretariat of the United = Nations at the=20 request of the Director-General of the United Nations Educational, = Scientific=20 and Cultural Organization.

Done in Paris this seventeenth day of November 1970, in two authentic = copies=20 bearing the signature of the President of the sixteenth session of the = General=20 Conference and of the Director-General of the United Nations = Educational,=20 Scientific and Cultural Organization, and certified true copies of which = shall=20 be delivered to all the States referred to in Articles 19 and 20 as well = as to=20 the United Nations.

The foregoing is the authentic text of the Convention duly adopted by = the=20 General Conference of the United Nations Educational, Scientific and = Cultural=20 Organization during its sixteenth session, which was held in Paris and = declared=20 closed the fourteenth day of November 1970.

THIS IS AN ORIGINAL=20 PAGE-BREAK:

PAGE = NUMBER=3D154=20

UNESCO

CONVENTION ON THE MEANS OF PROHIBITING AND = PREVENTING THE=20 ILLICIT IMPORT, EXPORT AND TRANSFER OF OWNERSHIP OF CULTURAL PROPERTY = (PARIS,=20 NOVEMBER 14, 1970)

LIST OF THE 88 STATES PARTIES

AS AT AUGUST 31, 1997

STATES DATE OF DEPOSIT DATE OF ENTRY INTO FORCE

RATIFICATION (R)

ACCEPTANCE (Ac)

ACCESSION (A)

SUCCESSION (S)

ALGERIA 24.06.1974 (R) 24.09.1974

ANGOLA 07.11.1991 (R) 07.02.1992

ARGENTINA 11.01.1973 (R) 11.04.1973

ARMENIA 05.09.1993 (S) NOTE 1

AUSTRALIA 30.10.1989 (Ac) 30.01.1990

BANGLADESH 09.12.1987 (R) 09.03.1988

BELARUS 28.04.1988 (R) 28.07.1988

BELIZE 26.01.1990 (R) 26.04.1990

BOLIVIA 04.10.1976 (R) 04.01.1977

BOSNIA-HERZEGOVINA (Republic of)2 12.07.1993 (S) NOTE 2

BRAZIL 16.02.1973 (R) 16.05.1973

BULGARIA5 15.09.1971 (R) 24.04.1972

BURKINA FASO 07.04.1987 (R) 07.07.1987

CAMBODIA 26.09.1972 (R) 26.12.1972

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PAGE = NUMBER=3D155=20

CAMEROON 24.05.1972 (R) 24.08.1972

CANADA 28.03.1978 (Ac) 28.06.1978

CENTRAL AFRICAN REPUBLIC 01.02.1972 (R) 01.05.1972

CHINA (People's Republic of) 28.11.1989 (Ac) 28.02.1990

COLOMBIA 24.05.1988 (Ac) 24.08.1988

COSTA RICA 06.03.1996 (R) 06.06.1996

COTE D'IVOIRE 30.10.1990 (R) 30.01.1991

CROATIA (Republic of)2 06.07.1992 (S) NOTE 2

CUBA 30.01.1980 (R) 30.04.1980

CYPRUS 19.10.1979 (R) 19.01.1980

CZECH REPUBLIC3 26.03.1993 (S) NOTE 3

DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA 13.05.1983 (R) 13.08.1983

DOMINICAN REPUBLIC 07.03.1973 (R) 07.06.1973

ECUADOR 24.03.1971 (Ac) 24.04.1972

EGYPT 05.04.1973 (Ac) 05.07.1973

EL SALVADOR 20.02.1978 (R) 20.05.1978

ESTONIA 27.10.1995 (R) 27.01.1996

FEDERAL REPUBLIC OF YUGOSLAVIA 03.10.1972 (R) 03.01.1973

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PAGE = NUMBER=3D156=20

FRANCE 07.01.1997 (R) 07.04.1997

GEORGIA (Republic of)1 04.11.1992 (S) NOTE 1

GREECE 05.06.1981 (R) 05.09.1981

GRENADA 10.09.1992 (Ac) 10.12.1992

GUATEMALA 14.01.1985 (R) 14.04.1985

GUINEA 18.03.1979 (R) 18.06.1979

HONDURAS 19.03.1979 (R) 19.06.1979

HUNGARY 23.10.1978 (R) 23.01.1979

INDIA 24.01.1977 (R) 24.04.1977

IRAN (Islamic Republic of) 27.01.1975 (Ac) 27.04.1975

IRAQ 12.02.1973 (Ac) 12.05.1973

ITALY 02.10.1978 (R) 02.01.1979

JORDAN 15.03.1974 (R) 15.06.1974

KAZAKSTAN May 1997

KUWAIT 22.06.1972 (Ac) 22.09.1972

KYRGHYZ REPUBLIC 03.07.1995 (A) 03.10.1995

LEBANON 25.08.1992 (R) 25.11.1992

LIBYA 09.01.1973 (R) 09.04.1973

MACEDONIA (The former Yugoslav2 = Replubic=20 of) 30.04.1997 (S) NOTE 2

MADAGASCAR 21.06.1989 (R) 21.09.1989

MALI 06.04.1987 (R) 06.07.1987

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PAGE = NUMBER=3D157=20

MAURITANIA 27.04.1977 (R) 27.07.1977

MAURITIUS 27.02.1978 (A) 27.05.1978

MEXICO 04.10.1972 (Ac) 04.01.1973

MONGOLIA 23.05.1991 (Ac) 23.08.1991

NEPAL 23.06.1976 (R) 23.09.1976

NICARAGUA 19.04.1977 (R) 19.07.1977

NIGER 16.10.1972 (R) 16.01.1973

NIGERIA 24.01.1972 (R) 24.04.1972

OMAN 02.06.1978 (Ac) 02.09.1978

PAKISTAN 30.04.1981 (R) 30.07.1981

PANAMA 13.08.1973 (Ac) 13.11.1973

PERU 24.10.1979 (Ac) 24.01.1980

POLAND 31.01.1974 (R) 30.04.1974

PORTUGAL 09.12.1985 (R) 09.03.1986

QUATAR 20.04.1977 (Ac) 20.07.1977

REPUBLIC OF KOREA 14.02.1983 (Ac) 14.05.1983

ROMANIA 06.12.1993 (R) 06.03.1994

RUSSIAN FEDERATION4 28.04.1988 (R) 28.07.1988

SAUDI ARABIA 08.09.1976 (Ac) 08.12.1976

SENEGAL 09.12.1984 (R) 09.03.1985

SLOVAK REPUBLIC3 31.03.1993 (S) NOTE 3

SLOVENIA (Republic of)2 05.11.1992 (S) NOTE 2

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PAGE = NUMBER=3D158=20

SPAIN 10.01.1986 (R) 10.04.1986

SRI LANKA 07.04.1981 (Ac) 07.07.1981

SYRIAN ARAB REPUBLIC 21.02.1975 (Ac) 21.05.1975

TAJIKISTAN(Republic of)1 28.08.1992 (S) NOTE 1

TANZANIA 02.08.1977 (R) 02.11.1977

TUNISIA 10.03.1975 (R) 10.06.1975

TURKEY 21.04.1981 (R) 21.07.1981

UKRAINE 28.04.1988 (R) 28.07.1988

UNITED STATES OF AMERICA 02.09.1983 (Ac) 02.12.1983

URUGUAY 09.08.1977 (R) 09.11.1977

UZBEKISTAN 15.03.1996 (R) 15.06.1996

ZAIRE 23.09.1974 (R) 23.12.1974

ZAMBIA 21.06.1985 (R) 21.09.1985

1.	This State=20 lodged a notification of succession at the mentioned date, = by which=20 it stated that it was bound by the Convention that the USSR = ratified=20 on 28 April 1988.

2.	This State=20 lodged a notification of succession at the mentioned date, = by which=20 it stated that it was bound by the Convention which = Yugoslavia=20 ratified on 3 October 1972.

3.	This State=20 lodged a notification of succession at the mentioned date, = by which=20 it stated that it was bound by the Convention which = Czechoslovakia=20 accepted on 14 February 1977.

4.	The=20 instrument of ratification was deposited by the USSR on 28 = April=20 1988. The Director-General has been informed that the = Russian=20 Federation would continue the participation of the USSR in = UNESCO=20 conventions.

5.	In=20 conformity with the procedure set forth in the Convention, = this=20 agreement entered into force, for the first States, three = months=20 after the deposit of ratification by the third State,=20 = Nigeria.

THIS IS AN ORIGINAL=20 PAGE-BREAK:

PAGE = NUMBER=3D159=20

APPENDIX C

COUNCIL DIRECTIVE 93/7/EEC

of 15 March, 1993 on the return of cultural objects = unlawfully removed from the territory of a Member State

THE COUNCIL OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Economic = Community, and=20 in particular Article 100a thereof,

Having regard to the proposal from the Commission1,

In co-operation with the European Parliament2

Having regard to the opinion of the Economic and Social = Committee,3

Whereas, Article 8a of the Treaty provides for the establish-ment, = not later=20 than 1 January 1993, of the internal market, which is to comprise an = area=20 without internal frontiers in which the free movement of goods, persons, = services and capital is ensured in accordance with the provisions of the = Treaty;

Whereas, under the terms and within the limits of Article 36 of the = Treaty,=20 Member States will, after 1992, retain the right to define their = national=20 treasures and to take the necessary measures to protect them in this = area=20 without internal frontiers;

Whereas arrangements should therefore be introduced enabling Member = States to=20 secure the return to their territory of cultural objects which are = classified as=20 national treasures within the meaning of the said Article 36 and have = been=20 removed from their territory in breach of the above mentioned national = measures=20 or of Council Regulation (EEC) No 3911/92 of 9 December 1992 on the = export of=20 cultural goods4; whereas = the=20 implementation of these arrangements should be as simple and efficient = as=20 possible; whereas, to facilitate co-operation with regard to return, the = scope=20 of the arrangements should be confined to items belonging to common = categories=20 of cultural objects; whereas the Annex to this Directive is consequently = not=20 intended to define objects which rank as 'national treasures' within the = meaning=20 of the said Article 36, but merely categories of object which

1	OJ No C 53,=20 28.2.1992, p.11 and OJ No C 172, 8.7.1992,=20 p.7.

2	OJ No C=20 176, 13.7.1992, p.129 and OJ No C 72,=20 15.3.1993.

3	OJ No C=20 223, 31.8.1992, p.10

4	OJ No L=20 395, 31.12.1992,=20 p.1

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PAGE = NUMBER=3D160=20

may be classified as such and may accordingly be covered by the = return=20 procedure introduced by this Directive;

Whereas cultural objects classified as national treasures and forming = an=20 integral part of public collections or inventories of ecclesiastical=20 institutions but which do not fall within these common categories should = also be=20 covered by this Directive;

Whereas administrative co-operation should be established between = Member=20 States as regards their co-operation in the field of stolen works of art = and=20 involving in particular the recording, with Interpol and other qualified = bodies=20 issuing similar lists of lost, stolen or illegally removed cultural = objects=20 forming part of their national treasures and their public = collections;

Whereas the procedure introduced by this Directive is a first step in = establishing co-operation between Member States in this field in the = context of=20 the internal market; whereas the aim is mutual recognition of the = relevant=20 national laws; whereas provision should therefore be made, in = particular, for=20 the Commission to be assisted by an advisory committee;

Whereas Regulation (EEC) No 3911/92 introduces, together with this = Directive,=20 a Community system to protect Member States' cultural goods; whereas the = date by=20 which Member States have to comply with this Directive has to be as = close as=20 possible to the date of entry into force of that Regulation; whereas, = having=20 regard to the nature of their legal systems and the scope of the changes = to=20 their legislation necessary to implement this Directive, some Member = States will=20 need a longer period.

HAS ADOPTED THIS DIRECTIVE:

Article 1

For the purposes of this Directive:

'Cultural object' shall mean an object which:

=96	is classified, before or after its unlawful removal from = the=20 territory of a Member State, among the 'national treasures=20 possessing artistic, historic or archaeological value' under = national legislation or administrative procedures within the = meaning=20 of Article 36 of the Treaty, and

=96	belongs to one of the categories listed in the Annex or = does not=20 belong to one of these categories but forms an integral part = of:

=96	public collections listed in the inventories of museums, = archives=20 or libraries' conservation=20 collection.

THIS IS AN = ORIGINAL=20 PAGE-BREAK:

PAGE=20 NUMBER=3D161

For the purposes of this Directive, 'public collections' = shall=20 mean collections which are the property of a Member State, = local or=20 regional authority within a Member State or an institution = situated=20 in the territory of a Member State and defined as public in=20 accordance with the legislation of that Member State, such=20 institution being the property of, or significantly financed = by,=20 that Member State or a local or regional=20 authority;

=96	the inventories of ecclesiastical=20 = institutions.

'Unlawfully removed from the territory of a Member State' shall = mean:

=96	removed from the territory of a Member State in breach of = its=20 rules on the protection of national treasures or in breach = of=20 Regulation (EEC) No 3911/92, = or

=96	not returned at the end of a period of lawful temporary = removal=20 or any breach of another condition governing such temporary=20 = removal.

'Requesting Member State' shall mean the Member State from whose = territory=20 the cultural object has been unlawfully removed.

'Requested Member State' shall mean the Member State in whose = territory a=20 cultural object unlawfully removed from the territory of another Member = State is=20 located.

'Return' shall mean the physical return of the cultural object to the = territory of the requesting Member State.

'Possessor' shall mean the person physically holding the cultural = object on=20 his own account.

'Holder' shall mean the person physically holding the cultural object = for=20 third parties.

Article 2

Cultural objects which have been unlawfully removed from the = territory of a=20 Member State shall be returned in accordance with the procedure and in = the=20 circumstances provided for in this Directive.

Article 3

Each Member State shall appoint one or more central authorities to = carry out=20 the tasks provided for in this Directive.

THIS IS AN ORIGINAL=20 PAGE-BREAK:

PAGE = NUMBER=3D162=20

Member States shall inform the Commission of all the central = authorities they=20 appoint pursuant to this Article.

The Commission shall publish a list of these central authorities and = any=20 changes concerning them in the C series of the Official Journal of = the=20 European Communities.

Article 4

Member States' central authorities shall co-operate and promote = consultation=20 between the Member States' competent national authorities. The latter = shall in=20 particular:

upon application by the requesting Member State, seek a specified = cultural=20 object which has been unlawfully removed from its territory, identifying = the=20 possessor and/or holder. The application must include all information = needed to=20 facilitate this search, with particular reference to the actual or = presumed=20 location of the object;

notify the Member States concerned, where a cultural object is found = in their=20 own territory and there are reasonable grounds for believing that it has = been=20 unlawfully removed from the territory of another Member State;

enable the competent authorities of the requesting Member State to = check that=20 the object in question is a cultural object, provided that the check is = made=20 within 2 months of the notification provided for in paragraph 2. If it = is not=20 made within the stipulated period, paragraphs 4 and 5 shall cease to = apply;

take any necessary measures, in co-operation with the Member State = concerned,=20 for the physical preservation of the cultural object;

prevent, by the necessary interim measures, any action to evade the = return=20 procedure;

act as intermediary between the possessor and/or holder and the = requesting=20 Member State with regard to return. To this end, the competent = authorities of=20 the requested Member States may, without prejudice to Article 5, first=20 facilitate the implementation of an arbitration procedure, in accordance = with=20 the national legislation of the requested State and provided that the = requesting=20 State and the possessor or holder give their formal approval.

Article 5

The requesting Member State may initiate, before the competent court = in the=20 requested Member State, proceedings against the possessor or, failing = him,=20 the

THIS IS AN ORIGINAL=20 PAGE-BREAK: PAGE = NUMBER=3D163=20

holder, with the aim of securing = the return of=20 a cultural object which has been unlawfully removed from its = territory.

Proceedings may be brought only where the document initiating them is = accompanied by:

=96	a document describing the object covered by the request = and=20 stating that it is a cultural = object,

=96	a declaration by the competent authorities of the = requesting=20 Member State that the cultural object has been unlawfully = removed=20 from its = territory.

Article 6

The central authority of the requesting Member State shall forthwith = inform=20 the central authority of the requested Member State that proceedings = have been=20 initiated with the aim of securing the return of the object in = question.

The central authority of the requested Member State shall forthwith = inform=20 the central authorities of the other Member States.

Article 7

Member States shall lay down in their legislation that the return = proceedings=20 provided for in this Directive may not be brought more than one year = after the=20 requesting Member State became aware of the location of the cultural = object and=20 of the identity of its possessor or holder.

Such proceedings may, at all events, not be brought more than 30 = years after=20 the object was unlawfully removed from the territory of the requesting = Member=20 State. However, in the case of objects forming part of public = collections,=20 referred to in Article 1 (1), and ecclesiastical goods in the Member = States=20 where they are subject to special protection arrangements under national = law,=20 return proceedings shall be subject to a time-limit of 75 years, except = in=20 Member States where proceedings are not subject to a time-limit or in = the case=20 of bilateral agreements between Member States laying down a period = exceeding 75=20 years.

Return proceedings may not be brought if removal from the national = territory=20 of the requesting Member State is no longer unlawful at the time when = they are=20 to be initiated.

Article 8

Save as otherwise provided in Articles 7 and 13, the competent court = shall=20 order

THIS IS AN ORIGINAL=20 PAGE-BREAK: PAGE = NUMBER=3D164=20

the return of the cultural object = in question=20 where it is found to be a cultural object within the meaning of Article = 1 (1)=20 and to have been removed unlawfully from national territory.

Article 9

Where return of the object is ordered, the competent court in the = requested=20 State shall award the possessor such compensation as it deems fair = according to=20 the circumstances of the case, provided that it is satisfied that the = possessor=20 exercised due care and attention in acquiring the object.

The burden of proof shall be governed by the legislation of the = requested=20 Member State.

In the case of a donation or succession, the possessor shall not be = in a more=20 favourable position than the person from whom he acquired the object by = that=20 means.

The requesting Member State shall pay such compensation upon return = of the=20 object.

Article 10

Expenses incurred in implementing a decision ordering the return of a = cultural object shall be borne by the requesting Member State. The same = applies=20 to the costs of the measures referred to in Article 4 (4).

Article 11

Payment of the fair compensation and of the expenses referred to in = Articles=20 9 and 10 respectively shall be without prejudice to the requesting = Member=20 State's right to take action with a view to recovering those amounts = from the=20 persons responsible for the unlawful removal of the cultural object from = its=20 territory.

Article 12

Ownership of the cultural object after return shall be governed by = the law of=20 the requesting Member State.

Article 13

This Directive shall apply only to cultural objects unlawfully = removed from=20 the territory of a Member State on or after 1 January 1993.

Article 14

Each Member State may extend its obligation to return cultural = objects to=20 cover categories of objects other than those listed in the = Annex.

THIS IS AN ORIGINAL=20 PAGE-BREAK:

PAGE = NUMBER=3D165=20

Each Member State may apply the arrangements provided for by this = Directive=20 to requests for the return of cultural objects unlawfully removed from = the=20 territory of other Member States prior to 1 January 1993.

Article 15

This Directive shall be without prejudice to any civil or criminal=20 proceedings that may be brought, under the national laws of the Member = States,=20 by the requesting Member State and/or the owner of a cultural object = that has=20 been stolen.

Article 16

Member States shall send the Commission every three years, and for = the first=20 time in February 1996, a report on the application of this = Directive.

The Commission shall send the European Parliament, the Council and = the=20 Economic and Social Committee, every three years, a report reviewing the = application of this Directive.

The Council shall review the effectiveness of this Directive after a = period=20 of application of three years and, acting on a proposal from the = Commission,=20 make any necessary adaptations.

In any event, the Council acting on a proposal from the Commission, = shall=20 examine every three years and, where appropriate, update the amounts = indicated=20 in the Annex on the basis of economic and monetary indicators in the=20 Community.

Article 17

The Commission shall be assisted by the Committee set up by Article 8 = of=20 Regulation (EEC) No 3911/92. The Committee shall examine any question = arising=20 from the application of the Annex to this Directive which may be tabled = by the=20 chairman either on his own initiative or at the request of the = representative of=20 a Member State.

Article 18

Member States shall bring into force the laws, regulations and = administrative=20 provisions necessary to comply with this Directive within nine months of = its=20 adoption, except as far as the Kingdom of Belgium, the Federal Republic = of=20 Germany and the Kingdom of the Netherlands are concerned, which must = conform to=20 this Directive at the latest twelve months from the date of its = adoption. They=20 shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a = reference to=20 this Directive or shall be accompanied by such reference on the occasion = of=20 their

THIS IS AN ORIGINAL=20 PAGE-BREAK: PAGE = NUMBER=3D166=20

official publication. The methods = of making=20 such a reference shall be laid down by the Member States.

Article 19

This Directive is addressed to the Member States.

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APPENDIX D

COUNCIL REGULATION (EEC) No 3911/92

of 9 December 1992 on the export of cultural = goods

THE COUNCIL OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Economic = Community, and=20 in particular Article 113 thereof,

Having regard to the proposal from the Commission,1

Having regard to the opinion of the European Parliament,2

Having regard to the opinion of the Economic and Social = Committee,3

Whereas, in view of the completion of the internal market, rules on = trade=20 with third countries are needed for the protection of cultural = goods;

Whereas, in the light of the conclusions of the Council ruling on 19 = November=20 1990, it seems necessary to take measures in particular to ensure that = exports=20 of cultural goods are subject to uniform controls at the Community's = external=20 borders;

Whereas such a system should require the presentation of a licence = issued by=20 the competent Member State prior to the export of cultural goods covered = by this=20 Regulation; whereas this necessitates a clear definition of the scope of = such=20 measures and the procedures for their implementation; whereas the = implementation=20 of the system should be as simple and efficient as possible; whereas a = Committee=20 should be set up to assist the Commission in carrying out the = responsibilities=20 conferred on it by this Regulation;

Whereas, in view of the considerable experience of the Member States' = authorities in the application of Council Regulation (EEC) No 1468/81 of = 19 May=20 1981 on mutual assistance between the administrative authorities of the = Member=20 States and co-operation between the latter and the Commission to ensure = the=20 correct application of the law on customs or agricultural matters4, the = said=20 Regulation should be applied to this matter;

1	OJ No C 53,=20 28.2.1992, p.8.

2	OJ No C=20 176, 13.7.1992, P.31.

3	OJ No C=20 223, 31.8.1992, p.10.

4	OJ No L=20 144, 2.6.1981, p.1. Regulation as amended by Regulation = (EEC) No=20 945/87 (OJ No L90, 2.4.1987,=20 p.3).

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PAGE = NUMBER=3D168=20

Whereas the Annex to this Regulation is aimed at making clear the = categories=20 of cultural goods which should be given particular protection in trade = with=20 third countries, but is not intended to prejudice the definition, by = Member=20 States, of national treasures within the meaning of Article 36 of the=20 Treaty,

HAS ADOPTED THIS REGULATION:

Article 1

Without prejudice to Member States' powers under Article 36 of the = Treaty,=20 the term 'cultural goods' shall refer, for the purposes of this = Regulation, to=20 the items listed in the Annex.

TITLE 1

Export licence

Article 2

The export of cultural goods outside the customs territory of the = Community=20 shall be subject to the presentation of an export licence.

The export licence shall be issued at the request of the person=20 concerned:

=96	by a competent authority of the Member State in whose = territory=20 the cultural object in question was lawfully and = definitively=20 located on 1 January 1993,

=96

or, thereafter, by a competent authority of the Member = State in=20 whose territory it is located following either lawful and = definitive=20 dispatch from another Member State, or importation from a = third=20 country, or reimportation from a third country after lawful = dispatch=20 from a Member State to that=20 country.

However, without prejudice to paragraph 4, the Member State which is=20 competent in accordance with the two indents in the first subparagraph = may not=20 require export licences for the cultural goods specified in the first = and second=20 indents of category A1 of the Annex where they are of limited = archaeological or=20 scientific interest, and provided that they are not the direct product = of=20 excavations, finds and archaeological sites within a Member State, and = that=20 their presence on the market is lawful.

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The export licence may be refused, for the purposes of this = Regulation, where=20 the cultural goods in question are covered by legislation protecting = national=20 treasures of artistic, historical or archaeological value in the Member = State=20 concerned.

Where necessary, the authority referred to in the second indent of = the first=20 subparagraph shall enter into contact with the competent authorities of = the=20 Member State from which the cultural object in question came, and in = particular=20 the competent authorities within the meaning of Council Directive = 93/7/EEC of 15=20 March 1993 on the return of cultural objects unlawfully removed from the = territory of a Member State.

The export licence shall be valid throughout the Community.

Without prejudice to the provisions of this Article, direct export = from the=20 customs territory of the Community of national treasures having = artistic,=20 historic or archaeological value which are not cultural goods within the = meaning=20 of this Regulation is subject to the national law of the Member State of = export.

Article 3

Member States shall furnish the Commission with a list of the = authorities=20 empowered to issue export licences for cultural goods.

The Commission shall publish a list of these authorities and any = amendment to=20 that list in the 'C' series of the Official Journal of the European=20 Communities.

Article 4

The export licence shall be presented, in support of the export = declaration,=20 when the customs export formalities are carried out, at the customs = office which=20 is competent to accept that declaration.

Article 5

Member States may restrict the number of customs offices empowered to = handle=20 formalities for the export of cultural goods.

Member States availing themselves of the option afforded by paragraph = 1 shall=20 inform the Commission of the customs offices duly empowered.

The Commission shall publish this information in the 'C' series of = the=20 Official Journal of the European Communities.

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PAGE = NUMBER=3D170=20

TITLE 2

Administrative co-operation

Article 6

For the purposes of implementing this Regulation, the provisions of=20 Regulation (EEC) No 1468/81, and in particular the provisions on the=20 confidentiality of information, shall apply mutatis mutandis.

In addition to the co-operation provided for under the first = subparagraph,=20 Member States shall take all necessary steps to establish, in the = context of=20 their mutual relations, co-operation between the customs authorities and = the=20 competent authorities referred to in Article 4 of Directive = 93/7/EEC.

TITLE 3

General and final provisions

Article 7

The provisions necessary for the implementation of this Regulation, = in=20 particular those concerning the form to be used (for example, the model = and=20 technical properties) shall be adopted in accordance with the procedure = laid=20 down in Article 8 (2).

Article 8

The Commission shall be assisted by a committee composed of the=20 representatives of the Member States and chaired by the representative = of the=20 Commission.

The committee shall examine any matter concerning the implementation = of this=20 Regulation raised by its chairman either on his own initiative or at the = request=20 of a representative of a Member State.

The representative of the Commission shall submit to the committee a = draft of=20 the measures to be taken. The committee shall deliver its opinion on the = draft=20 within a time limit which the chairman may lay down according to the = urgency of=20 the matter, if necessary by taking a vote.

The opinion shall be recorded in the minutes; in addition, each = Member State=20 shall have the right to ask to have its position recorded in the = minutes.

The Commission shall take the utmost account of the opinion = delivered

THIS IS AN ORIGINAL=20 PAGE-BREAK: PAGE = NUMBER=3D171=20

by the committee. It shall inform = the=20 committee of the manner in which its opinion has been taken into = account.

Article 9

Each Member State shall determine the penalties to be applied for=20 infringement of the provisions of this Regulation. The penalties shall = be=20 sufficient to promote compliance with those provisions.

Article 10

Each Member State shall inform the Commission of the measures taken = pursuant=20 to this Regulation.

The Commission shall pass on this information to the other Member = States.

Every three years the Commission shall present a report to the = European=20 Parliament, the Council and the Economic and Social Committee on the=20 implementation of this Regulation.

The Council shall review the effectiveness of the Regulation after a = period=20 of application of three years and, acting on a proposal from the = Commission,=20 make any necessary adaptations.

In any event, the Council, acting on a proposal from the Commission, = shall=20 examine every three years and, where appropriate, update the amounts = indicated=20 in the Annex, on the basis of economic and monetary indicators in the=20 Community.

Article 11

This Regulation shall enter into force on the third day following = that of=20 publication in the Official Journal of the European Communities = of=20 Directive 93/7/EEC.

This Regulation shall be binding in its entirety and directly = applicable in=20 all Member States.

Done at Brussels, 9 December 1992.

THIS IS AN ORIGINAL=20 PAGE-BREAK:

PAGE = NUMBER=3D172=20

ANNEX

CATEGORIES OF CULTURAL OBJECTS COVERED BY ARTICLE = 1

Archaeological objects more than 100 years old which are = the=20 products of:

=96

excavations and finds on land or under water 9705 00=20 00

=96

archaeological sites 9706 00 = 00

=96

archaeological collections

Elements forming an integral part of artistic, historical = or=20 religious monuments which have been dismembered, of an age = exceeding=20 100 years 9705 00 00 9706 00 = 00

Pictures and paintings executed entirely by hand, on any = medium=20 and in any material1=20 9701

Mosaics other than those in cate-gories 1 or 2 and = drawings=20 executed entirely by hand, on any medium and in any = material1 6914=20 9701

Original engravings, prints, scrigraphs and lithographs = with=20 their respective plates and original posters1=20 Chapter 49 9702 00 00 8442 50 = 99

Original sculptures or statuary and copies produced by = the same=20 process as the original1, other=20 than those in category 1 9703 00 = 00

Photographs, films and negatives thereof1 3704=20 3705 3706 4911 91 80

Incunabula and manuscripts, including maps and musical = scores,=20 singly or in collections1 9702=20 00 00 9706 00 00 4901 10 00 4901 99 00 4904 00 00 4905 91 00 = 4905 99=20 00 4906 00 00

1	Which=20 are more than 50 years old and do not belong to their=20 = originators.

<= BR>

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PAGE=20 NUMBER=3D173

Books more than 100 years old, singly or in collections = 9705 00=20 00 9706 00 00

10.

Printed maps more than 200 years old 9706 00=20 00

11.

Archives, and any elements thereof, of any kind or any = medium=20 which are more than 50 years old 3704 3705 3706 4901 4906 = 9705 00 00=20 9706 00 00

12.

(a)

Collections2 and=20 specimens from zoological, botanical, mineralogical or = anatomical=20 collections; 9705 00 00

(b)

Collections2 of=20 historical, palaeontological, ethnographic or numismatic = interest=20 9705 00 00

13.

Means of transport more than 75 years old 9705 00 00 = Chapters=20 86=9689

14.

Any other antique items not included in categories A.1 to = A.13

(a)

between 50 and 100 years = old:

=96

toys, games Chapter 95

=96

glassware 7013

=96

articles of goldsmiths' or silversmiths wares=20 7114

=96

furniture Chapter 94

=96

optical, photographic or cinematographic apparatus = Chapter=20 90

=96

musical instruments Chapter = 92

=96

clocks and watches and parts thereof Chapter=20 91

=96

=96 articles of wood Chapter = 44

=96

pottery Chapter 69

=96

tapestries 5805 00 00

=96

carpets Chapter 57

=96

wallpaper 4814

=96

arms Chapter 93

(b)

more than 100 years old 9706 00 = 00

As=20 defined by the Court of Justice in its judgment in = Case=20 252/84, as follows: 'Collectors' pieces within the = meaning of=20 heading No 97.05 of the Common Customs Tariff are = articles=20 which possess the requisite characteristics for = inclusion in a=20 collection, that is to say, articles which are = relatively=20 rare, are not normally used for their original = purpose, are=20 the subject of special transactions outside the normal = trade=20 in similar utility articles and are of high=20 = value.'

THIS IS AN = ORIGINAL=20 PAGE-BREAK:

PAGE=20 NUMBER=3D174

The cultural objects in categories A.1 to A.14 are = covered by=20 this Regulation only if their value corresponds to, or = exceeds, the=20 financial thresholds under B.

Financial thresholds applicable to certain categories = under A (in=20 ecus)

Value: 0 (Zero)

=96

1 (Archaeological objects)

=96

2 (Dismembered monuments)

=96

8 (Incunabula and = manuscripts)

=96

11 (Archives)

15 000

=96

4 (Mosaics and drawings)

=96

5 (Engravings)

=96

7 (Photographs)

=96

10 (Printed maps)

50 000

=96

6 (Statuary)

=96

9 (Books)

=96

12 (Collections)

=96

13 (Means of transport)

=96

14 (Any other object)

150 000

=96

3 = (Pictures)

The assessment of whether or not the conditions relating to financial = value=20 are fulfilled must be made when an application for an export licence is=20 submitted. The financial value is that of the cultural object in the = Member=20 State referred to in Article 2 (2) of the Regulation.

The date for the convertion of values expressed in ecus in the Annex = into=20 national currencies shall be 1 January 1993.

THIS IS AN ORIGINAL=20 PAGE-BREAK:

PAGE = NUMBER=3D175=20

APPENDIX E

SCHEME FOR THE PROTECTION OF CULTURAL HERITAGE WITHIN THE=20 COMMONWEALTH

Objectives of the Scheme

(1)	The provision of the Scheme govern the return by one = Commonwealth=20 country of an item of cultural heritage found within its=20 jurisdiction following export from another Commonwealth = country=20 contrary to its laws.

(2)	The provisions of the Scheme will apply to the export and = import=20 of items which take place after the adoption and = implementation of=20 the Scheme. The Scheme adds to and in no way derogates from = future=20 and existing means of recovery of items of cultural=20 heritage.

(3)

The Scheme is intended to be complementary to, and does = not in=20 any way exclude, full participation in other international=20 arrangements such as the UNESCO Convention on the Means of=20 Prohibiting and Preventing the Illicit Import, Export and = Transfer=20 of Ownership of Cultural Property 1970, the UNIDROIT = Convention on=20 Stolen or Illegally Exported Cultural Objects, the European=20 Communities Directive on the return of cultural objects = unlawfully=20 removed from the territory of a member State and the = Regulation on=20 the export of cultural goods from member States of the = European=20 = Community.

Definitions

For the purposes of the Scheme:

(a)	=93country=94 means:

(i)

each sovereign and independent country within the = Commonwealth=20 together with any dependent territories which that country=20 designates; and

(ii)

each country within the Commonwealth which, though not = sovereign=20 and independent, is not a territory designated for the = purpose of=20 the preceding subparagraph.

(b)	=93country of export=94 means the country from which an = item covered=20 by the Scheme has been unlawfully = exported.

(c)	=93country of location=94 means the country where an item = which has=20 been unlawfully exported is located at the time the = provisions of=20 the Scheme are invoked by the country of export for the = return of=20 the item.

(d)

=93unlawful export=94 in relation to any country means an = item which=20 was exported from that country in contravention of its law: = it=20 includes an item which has been taken out of the country of = export=20 under a conditional permit and where there has subsequently = been a=20 breach of the conditions of the permit, in which event = =93unlawful=20 export=94 is deemed to have occurred as of the date of the = breach of=20 the = condition.

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PAGE = NUMBER=3D176=20

Items covered by the Scheme

(1)	The Scheme covers all items of cultural heritage so = classified=20 by, and subject to export control by, the country of=20 export.

(2)	Items classified should be of national importance by = virtue of=20 one or more of the following = criteria:

(a)

the close association of the item with the history or = life of the=20 country;

(b)

the aesthetic qualities of the = item;

(c)

the value of the item in the study of the arts or the=20 sciences;

(d)

the rarity of the item;

(e)

the spiritual or emotional association of the item with = the=20 people of the country or any group or section=20 thereof;

(f)

the archaeological significance of the=20 item.

(3)	Where a country is unable by reason of laws pursuant to = other=20 international obligations to extend protection to all such = items it=20 shall be open to other countries similarly to restrict the=20 protection they afford to that country under this=20 Scheme.

Validation System

(1)

As part of the Scheme, a system of validation may be = introduced=20 whereby an intending purchaser of an item of cultural = heritage or=20 any other interested person is enabled to request of the = central=20 authority of the country of export a validation certificate = to the=20 effect that the item is not an unlawful export from that=20 country.

(2)	Such a validation certificate would constitute a complete = defence=20 to any claim by the country of export that the item had been = unlawfully exported.

(3)

Where an application is made for a validation certificate = in=20 respect of any item, the application should be granted or = refused=20 within six months of receipt of the application. If the = application=20 is not granted or refused within that period, the country of = export=20 should be precluded from claiming that the item has been = unlawfully=20 exported from that=20 country.

Operation of the Scheme

(1)	Each country will prohibit the export of items covered by = the=20 Scheme except in accordance with the terms of an export=20 permit.

(2)	Each country will take the measures necessary to ensure = the=20 return of items covered by the Scheme of the country of=20 = export.

(1)	Each country will designate a central authority for the = making=20 and the receiving of requests for the return of items = covered by the=20 Scheme.

THIS IS AN = ORIGINAL=20 PAGE-BREAK:

PAGE=20 NUMBER=3D177

(2)	Each country will notify the Commonwealth = Secretary-General of=20 its central = authority.

(1)	When the country of export learns of the whereabouts of = an item=20 covered by the Scheme, it may request the country of = location for=20 assistance in the recovery and return of that=20 item.

(2)	Where two countries of export make a request for the = return of=20 the same item, the request of the country from which the = item was=20 last exported will be proceeded with; but that will not = prejudice=20 further requests for the item.

(3)	The request will give sufficient detail to clearly = identify the=20 item and where possible its location and shall be = accompanied by an=20 official notification from the country of export to the = effect that=20 the item is covered by the Scheme and has been unlawfully=20 exported.

(4)	Such notification will be prima facie evidence of = the=20 matters stated = therein.

Upon receipt of a request, the country of location will take = appropriate=20 steps in accordance with its laws to secure or safeguard the item.

(1)	The authorities in the country of location may=20 either:

(a)

give notice to the holder of the item that unless court=20 proceedings are commenced within a stipulated period, the = item will=20 be returned to the country of export, = or

(b)

institute proceedings or advise the country of export to=20 institute proceedings with a view to securing an order for = the=20 return of the item to the country of = export.

(2)	In any proceeding instituted either by the holder of the = item or=20 by the authorities in the country of location or of export = the court=20 will determine whether the item is covered=20 by:

(a)

the Scheme;

(b)

an export permit; or

(c)

a validation certificate.

If the item is covered by the Scheme and such a permit or = certificate has been issued, or if the item is not covered = by the=20 Scheme, the court may order that the item be returned to the = holder.=20 If the item is covered by the Scheme and such a permit or=20 certificate has not been issued, the court will order that = the item=20 be returned to the country of = export.

(3)

Prior to ordering the return of the item the court will = determine=20 whether the holder of the item is an innocent purchaser for = value=20 having exercised due care and attention in acquiring the = item and,=20 if it is proved that the holder is such an innocent = purchaser with=20 valid title to the item, the court will order that fair and=20 reasonable compensation be payable by the country of export = to the=20 holder as a condition for the return of the item to the = country of=20 export. All other questions of title=20 and

THIS IS AN = ORIGINAL=20 PAGE-BREAK:

PAGE=20 NUMBER=3D178

compensation will be determined by proceedings in the = country of=20 export.

(4)	In any proceedings in the country of location, the holder = of an=20 item may, unless the contrary be proved, be presumed not to = be an=20 innocent purchaser for value if he has neglected or failed = to=20 utilise any relevant validation system under the=20 Scheme.

10.

The central authority in the country of export to which an item is = returned=20 will be required to hold the item for a period of twelve months. During = this=20 period it will be open for any person to take proceedings in the country = of=20 export to determine any question of title and compensation.

11.

In the event that proceedings to establish title are not commenced = within the=20 twelve month period, the central authority will deal with the item in = accordance=20 with the law of the country of export.

12.

In any proceedings in a country of location, the court will have due = regard=20 to the relevant laws of the country of export.

13.

The person adjudged to have title in the item will not have any right = to=20 remove the item from the country of export otherwise than by the process = of=20 applying for and obtaining an export permit.

Limitation Period

14.

No claim for the return of an item alleged to have been unlawfully = exported=20 may be made under the Scheme more than five years after the date the = country of=20 export had knowledge of the whereabouts of the item in the country of=20 location.

15.

Each country:

(a)	will make it an offence to unlawfully export from its = territory=20 an item of its own cultural heritage covered by the Scheme;=20 and

(b)	may make it an offence to unlawfully import an item of = cultural=20 heritage covered by the Scheme unlawfully exported from = another=20 = country.

Costs

16.

(1)	The country of location in implementing the Scheme may = require=20 the country of export to meet the expenses necessarily = incurred in=20 implementing the request of the country of export for the = return of=20 any item of cultural heritage.

(2)	If in the opinion of the country of location the expenses = required in order to comply with the request are of an = extraordinary=20 nature, that country will consult with the country of export = as to=20 the terms and conditions under = which

THIS IS AN = ORIGINAL=20 PAGE-BREAK:

PAGE=20 NUMBER=3D179

compliance with the request may continue, and in the = absence of=20 agreement the country of location may refuse to comply = further with=20 the = request.

Standard Forms

17.

In implementing the Scheme, each country will as far as is = practicable use=20 standard forms which will be settled by consultation through the = Commonwealth=20 Secretariat.

THIS IS AN ORIGINAL=20 PAGE-BREAK:

PAGE = NUMBER=3D180=20

APPENDIX F

Written submissions on the Consultation Paper were received = from:

Malcolm Alexander, Alexander Antiques

Alpha Connelly, Legal Adviser, Department of Foreign Affairs

Brian Coyle, Chairman, James Adam & Sons

Ronald W A Le Bas, Assay Master, Assay Office

Dr F McCormick, School of Geosciences, Queen's University, = Belfast

Dr Edward McPartland, Department of the History of Art, Trinity = College,=20 Dublin

Ted Murphy, Detective Superintendent, An Garda Sioch=E1na

Nessa O'Connor, Assistant Keeper, Irish Antiquities Division, = National Museum=20 of Ireland

Patricia Quinn, Director, The Arts Council

Michael Ryan, Director and Librarian, The Chester Beatty Library

Eithne Verling, Museums Officer, The Heritage Council

THIS IS AN ORIGINAL=20 PAGE-BREAK:

PAGE = NUMBER=3D181=20

LAW REFORM COMMISSION PUBLICATIONS

First Programme for Examination of Certain Branches of the Law with a = View to=20 their Reform (Dec 1976) (Prl. 5984) [out of print] [photocopy = available]=20 [10p Net]

Working Paper No. 1=961977, The Law Relating to the Liability of = Builders,=20 Vendors and Lessors for the Quality and Fitness of Premises (June 1977) = [=A3 1.50=20 Net]

Working Paper No. 2=961977, The Law Relating to the Age of Majority, = the Age=20 for Marriage and Some Connected Subjects (Nov 1977) [=A3 1.00 Net]

Working Paper No. 3=961977, Civil Liability for Animals (Nov 1977) = [=A3 2.50=20 Net]

First (Annual) Report (1977) (Prl. 6961) [40p Net]

Working Paper No. 4=961978, The Law Relating to Breach of Promise of = Marriage=20 (Nov 1978) [=A3 1.00 Net]

Working Paper No. 5=961978, The Law Relating to Criminal Conversation = and the=20 Enticement and Harbouring of a Spouse (Dec 1978) [=A3 1.00 Net]

Working Paper No. 6=961979, The Law Relating to Seduction and the = Enticement=20 and Harbouring of a Child (Feb 1979) [=A3 1.50 Net]

Working Paper No. 7=961979, The Law Relating to Loss of Consortium = and Loss of=20 Services of a Child (March 1979) [=A3 1.00 Net]

Working Paper No. 8=961979, Judicial Review of Administrative Action: = the=20 Problem of Remedies (Dec 1979) [=A3 1.50 Net]

Second (Annual) Report (1978/79) (Prl. 8855) [75p Net]

Working Paper No. 9=961980, The Rule Against Hearsay (April 1980) = [=A3 2.00=20 Net]

Third (Annual) Report (1980) (Prl. 9733) [75p Net]

First Report on Family Law =96 Criminal Conversation, Enticement and = Harbouring=20 of a Spouse or Child, Loss of Consortium, Personal Injury to a Child, = Seduction=20 of a Child, Matrimonial Property and Breach of Promise of Marriage (LRC = 1=961981)=20 (March 1981) [=A3 2.00 Net]

Working Paper No. 10=961981, Domicile and Habitual Residence as = Connecting=20 Factors in the Conflict of Laws (Sep 1981) [=A3 1.75 Net]

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Fourth (Annual) Report (1981) (PL. 742) [75p Net]

Report on Civil Liability for Animals (LRC 2=961982) (May 1982) [=A3 = 1.00=20 Net]

Report on Defective Premises (LRC 3=961982) (May 1982) [=A3 1.00 = Net]

Report on Illegitimacy (LRC 4=961982) (Sep 1982) [=A3 3.50 Net]

Fifth (Annual) Report (1982) (PL. 1795) [75p Net]

Report on the Age of Majority, the Age for Marriage and Some = Connected=20 Subjects (LRC 5=961983) (April 1983) [=A3 1.50 Net]

Report on Restitution of Conjugal Rights, Jactitation of Marriage and = Related=20 Matters (LRC 6=961983) (Nov 1983) [=A3 1.00 Net]

Report on Domicile and Habitual Residence as Connecting Factors in = the=20 Conflict of Laws (LRC 7=961983) (Dec 1983) [=A3 1.50 Net]

Report on Divorce a Mensa et Thoro and Related Matters (LRC 8=961983) = (Dec=20 1983) [=A3 3.00 Net]

Sixth (Annual) Report (1983) (PL. 2622) [=A3 1.00 Net]

Report on Nullity of Marriage (LRC 9=961984 (Oct 1984) [=A3 3.50 = Net]

Working Paper No. 11=961984, Recognition of Foreign Divorces and = Legal=20 Separations (Oct 1984) [=A3 2.00 Net]

Seventh (Annual) Report (1984) (PL. 3313) [=A3 1.00 Net]

Report on Recognition of Foreign Divorces and Legal Separations (LRC = 10=961985)=20 (April 1985) [=A3 1.00 Net]

Report on Vagrancy and Related Offences (LRC 11=961985) (June 1985) = [=A3 3.00=20 Net]

Report on the Hague Convention on the Civil Aspects of International = Child=20 Abduction and Some Related Matters (LRC 12=961985) (June 1985) [=A3 2.00 = Net]

Report on Competence and Compellability of Spouses as Witnesses (LRC = 13=961985)=20 (July 1985) [=A3 2.50 Net]

Report on Offences Under the Dublin Police Acts and Related Offences = (LRC=20 14=961985) (July 1985) [=A3 2.50 Net]

Report on Minors' Contracts (LRC 15=961985) (August 1985) [=A3 3.50=20 Net]

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Report on the Liability in Tort of Minors and the Liability of = Parents for=20 Damage Caused by Minors (LRC 17=961985) (Sep 1985) [=A3 3.00 Net]

Report on the Liability in Tort of Mentally Disabled Persons (LRC = 18=961985)=20 (Sep 1985) [=A3 2.00 Net]

Report on Private International Law Aspects of Capacity to Marry and = Choice=20 of Law in Proceedings for Nullity of Marriage (LRC 19=961985) (Oct 1985) = [=A3 3.50=20 Net]

Report on Jurisdiction in Proceedings for Nullity of Marriage, = Recognition of=20 Foreign Nullity Decrees, and the Hague Convention on the Celebration and = Recognition of the Validity of Marriages (LRC 20=961985) (Oct 1985) [=A3 = 2.00=20 Net]

Eighth (Annual) Report (1985) (PI. 4281) [=A3 1.00 Net]

Report on the Statute of Limitations: Claims in Respect of Latent = Personal=20 Injuries (LRC 21=961987) (Sep 1987) [=A3 4.50 Net]

Consultation Paper on Rape (Dec 1987) [=A3 6.00 Net]

Report on the Service of Documents Abroad re Civil Proceedings =96 = the Hague=20 Convention (LRC 22=961987) (Dec 1987) [=A3 2.00 Net]

Report on Receiving Stolen Property (LRC 23=961987) (Dec 1987) [=A3 = 7.00 Net]

Ninth (Annual) Report (1986=961987) (PI. 5625) [=A3 1.50 = Net]

Report on Rape and Allied Offences (LRC 24=961988) (May 1988) [=A3 = 3.00 Net]

Report on the Rule Against Hearsay in Civil Cases (LRC 25=961988) = (Sep 1988) [=A3=20 3.00 Net]

Report on Malicious Damage (LRC 26=961988) (Sep 1988) [=A3 4.00 = Net]

Report on Debt Collection: (1) The Law Relating to Sheriffs (LRC = 27=961988)=20 (Oct 1988) [=A3 5.00 Net]

Tenth (Annual) Report (1988) (PI 6542) [=A3 1.50 Net]

Report on Debt Collection: (2) Retention of Title (LRC 28=961989) = (April 1989)=20 [=A3 4.00 Net]

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Report on Land Law and Conveyancing Law: (1) General Proposals (LRC = 30=961989)=20 (June 1989) [=A3 5.00 Net]

Consultation Paper on Child Sexual Abuse (August 1989) [=A310.00 = Net]

Report on Land Law and Conveyancing Law: (2) Enduring Powers of = Attorney (LRC=20 31=961989)(Oct 1989) [=A3 4.00 Net]

Eleventh (Annual) Report (1989) (Pl 7448) [=A3 1.50 Net]

Report on Child Sexual Abuse (September 1990) (LRC 32=961990) [=A3 = 7.00 Net]

Report on Sexual Offences Against the Mentally Handicapped (September = 1990)=20 (LRC 33=961990) [=A3 4.00 Net]

Report on Oaths and Affirmations (LRC 34=961990) (December 1990) [=A3 = 5.00=20 Net]

Report on Confiscation of the Proceeds of Crime (LRC 35=961991) = (January 1991)=20 [=A3 6.00 Net]

Consultation Paper on the Civil Law of Defamation (March 1991) = [out of=20 print] [=A320.00 Net]

Report on the Hague Convention on Succession to the Estates of = Deceased=20 Persons (LRC 36=961991) (May 1991) [=A3 7.00 Net]

Twelfth (Annual) Report (1990) (PI 8292) [=A3 1.50 Net]

Consultation Paper on Contempt of Court (July 1991) [=A320.00 = Net]

Consultation Paper on the Crime of Libel (August 1991) [=A311.00 = Net]

Report on The Indexation of Fines (LRC 37=961991) (October 1991) [=A3 = 6.50=20 Net]

Report on The Civil Law of Defamation (LRC 38=961991) (December 1991) = [out=20 of print] [=A3 7.00 Net]

Report on Land Law and Conveyancing Law: (3) The Passing of Risk from = Vendor=20 to Purchaser (LRC 39=961991) (December 1991); (4) Service of Completion = Notices=20 (LRC 40=961991) (December 1991) [=A3 6.00 Net]

Report on The Crime of Libel (LRC 41=961991) (December 1991) [=A3 = 4.00 Net]

Report on United Nations (Vienna) Convention on Contracts for = the

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International Sale of Goods 1980 = (LRC 42=961992)=20 (May 1992) [=A3 8.00 Net]

Thirteenth (Annual) Report (1991) (PI 9214) [=A3 2.00 Net]

Report on The Law Relating to Dishonesty (LRC 43=961992) (September = 1992)=20 [=A320.00 Net]

Land Law and Conveyancing Law: (5) Further General Proposals (LRC = 44=961992)=20 (October 1992) [out of print] [=A3 6.00 Net]

Consultation Paper on Sentencing (March 1993) [=A320.00 Net]

Consultation Paper on Occupiers' Liability (June 1993) [out of = print]=20 [=A310.00 Net]

Fourteenth (Annual) Report (1992) (PN.0051) [=A3 2.00 Net]

Report on Non-Fatal Offences Against The Person (LRC 45=961994) = (February 1994)=20 [=A320.00 Net]

Consultation Paper on Family Courts (March 1994) [=A310.00 Net]

Report on Occupiers' Liability (LRC 46=961994) (April 1994) [=A3 6.00 = Net]

Report on Contempt of Court (LRC 47=961994) (September 1994) = [=A310.00 Net]

Fifteenth (Annual) Report (1993) (PN.1122) [=A3 2.00 Net]

Report on The Hague Convention Abolishing the Requirement of = Legalisation for=20 Foreign Public Documents (LRC 48=961995) (February 1995) [=A310.00 = Net]

Consultation Paper on Intoxication as a Defence to a Criminal Offence = (February 1995) [=A310.00 Net]

Report on Interests of Vendor and Purchaser in Land during period = between=20 Contract and Completion (LRC 49=961995) (April 1995) [=A3 8.00 Net]

Sixteenth (Annual) Report (1994) (PN. 1919) [ 2.00 Net]

An Examination of The Law of Bail (LRC 50=961995) (August 1995) = [=A310.00=20 Net]

Report on Intoxication (LRC 51=961995) (November 1995) [=A3 2.00 = Net]

Report on Family Courts (LRC 52=961996) (March 1996) [=A310.00 = Net]

Seventennth (Annual) Report (1995) (PN. 2960) [ =A32.50 = Net]

THIS IS AN ORIGINAL=20 PAGE-BREAK:

PAGE = NUMBER=3D186=20

Report on Sentencing (LRC 53=961996) (August 1996) [=A3 8.00 Net]

Consultation Paper on Privacy: Surveillance and the Interception of=20 Communications (September 1996) [=A320.00 Net]

Report on Personal Injuries (LRC 54=961996) (December 1996) [=A310.00 = Net]

Eighteenth (Annual) Report (1996) (PN. 3760) [=A3 2.50 = Net]

Consultation Paper on The Implementation of the Hague Convention on=20 Protection of Children and Co-operation in Respect of Intercountry = Adoption,=20 1993 (September 1997) [=A310.00 Net]

THIS IS AN ORIGINAL=20 PAGE-BREAK:

PAGE = NUMBER=3D187=20

STATES	DATE OF DEPOSIT	DATE OF ENTRY INTO FORCE
	RATIFICATION (R)
	ACCEPTANCE (Ac)
	ACCESSION (A)
	SUCCESSION (S)
ALGERIA	24.06.1974 (R)	24.09.1974
ANGOLA	07.11.1991 (R)	07.02.1992
ARGENTINA	11.01.1973 (R)	11.04.1973
ARMENIA	05.09.1993 (S)	NOTE 1
AUSTRALIA	30.10.1989 (Ac)	30.01.1990
BANGLADESH	09.12.1987 (R)	09.03.1988
BELARUS	28.04.1988 (R)	28.07.1988
BELIZE	26.01.1990 (R)	26.04.1990
BOLIVIA	04.10.1976 (R)	04.01.1977
BOSNIA-HERZEGOVINA (Republic of)2	12.07.1993 (S)	NOTE 2
BRAZIL	16.02.1973 (R)	16.05.1973
BULGARIA5	15.09.1971 (R)	24.04.1972
BURKINA FASO	07.04.1987 (R)	07.07.1987
CAMBODIA	26.09.1972 (R)	26.12.1972

CAMEROON	24.05.1972 (R)	24.08.1972
CANADA	28.03.1978 (Ac)	28.06.1978
CENTRAL AFRICAN REPUBLIC	01.02.1972 (R)	01.05.1972
CHINA (People's Republic of)	28.11.1989 (Ac)	28.02.1990
COLOMBIA	24.05.1988 (Ac)	24.08.1988
COSTA RICA	06.03.1996 (R)	06.06.1996
COTE D'IVOIRE	30.10.1990 (R)	30.01.1991
CROATIA (Republic of)2	06.07.1992 (S)	NOTE 2
CUBA	30.01.1980 (R)	30.04.1980
CYPRUS	19.10.1979 (R)	19.01.1980
CZECH REPUBLIC3	26.03.1993 (S)	NOTE 3
DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA	13.05.1983 (R)	13.08.1983
DOMINICAN REPUBLIC	07.03.1973 (R)	07.06.1973
ECUADOR	24.03.1971 (Ac)	24.04.1972
EGYPT	05.04.1973 (Ac)	05.07.1973
EL SALVADOR	20.02.1978 (R)	20.05.1978
ESTONIA	27.10.1995 (R)	27.01.1996
FEDERAL REPUBLIC OF YUGOSLAVIA	03.10.1972 (R)	03.01.1973

FRANCE	07.01.1997 (R)	07.04.1997
GEORGIA (Republic of)1	04.11.1992 (S)	NOTE 1
GREECE	05.06.1981 (R)	05.09.1981
GRENADA	10.09.1992 (Ac)	10.12.1992
GUATEMALA	14.01.1985 (R)	14.04.1985
GUINEA	18.03.1979 (R)	18.06.1979
HONDURAS	19.03.1979 (R)	19.06.1979
HUNGARY	23.10.1978 (R)	23.01.1979
INDIA	24.01.1977 (R)	24.04.1977
IRAN (Islamic Republic of)	27.01.1975 (Ac)	27.04.1975
IRAQ	12.02.1973 (Ac)	12.05.1973
ITALY	02.10.1978 (R)	02.01.1979
JORDAN	15.03.1974 (R)	15.06.1974
KAZAKSTAN	May 1997
KUWAIT	22.06.1972 (Ac)	22.09.1972
KYRGHYZ REPUBLIC	03.07.1995 (A)	03.10.1995
LEBANON	25.08.1992 (R)	25.11.1992
LIBYA	09.01.1973 (R)	09.04.1973
MACEDONIA (The former Yugoslav2 = Replubic=20 of)	30.04.1997 (S)	NOTE 2
MADAGASCAR	21.06.1989 (R)	21.09.1989
MALI	06.04.1987 (R)	06.07.1987

MAURITANIA	27.04.1977 (R)	27.07.1977
MAURITIUS	27.02.1978 (A)	27.05.1978
MEXICO	04.10.1972 (Ac)	04.01.1973
MONGOLIA	23.05.1991 (Ac)	23.08.1991
NEPAL	23.06.1976 (R)	23.09.1976
NICARAGUA	19.04.1977 (R)	19.07.1977
NIGER	16.10.1972 (R)	16.01.1973
NIGERIA	24.01.1972 (R)	24.04.1972
OMAN	02.06.1978 (Ac)	02.09.1978
PAKISTAN	30.04.1981 (R)	30.07.1981
PANAMA	13.08.1973 (Ac)	13.11.1973
PERU	24.10.1979 (Ac)	24.01.1980
POLAND	31.01.1974 (R)	30.04.1974
PORTUGAL	09.12.1985 (R)	09.03.1986
QUATAR	20.04.1977 (Ac)	20.07.1977
REPUBLIC OF KOREA	14.02.1983 (Ac)	14.05.1983
ROMANIA	06.12.1993 (R)	06.03.1994
RUSSIAN FEDERATION4	28.04.1988 (R)	28.07.1988
SAUDI ARABIA	08.09.1976 (Ac)	08.12.1976
SENEGAL	09.12.1984 (R)	09.03.1985
SLOVAK REPUBLIC3	31.03.1993 (S)	NOTE 3
SLOVENIA (Republic of)2	05.11.1992 (S)	NOTE 2

SPAIN	10.01.1986 (R)	10.04.1986
SRI LANKA	07.04.1981 (Ac)	07.07.1981
SYRIAN ARAB REPUBLIC	21.02.1975 (Ac)	21.05.1975
TAJIKISTAN(Republic of)1	28.08.1992 (S)	NOTE 1
TANZANIA	02.08.1977 (R)	02.11.1977
TUNISIA	10.03.1975 (R)	10.06.1975
TURKEY	21.04.1981 (R)	21.07.1981
UKRAINE	28.04.1988 (R)	28.07.1988
UNITED STATES OF AMERICA	02.09.1983 (Ac)	02.12.1983
URUGUAY	09.08.1977 (R)	09.11.1977
UZBEKISTAN	15.03.1996 (R)	15.06.1996
ZAIRE	23.09.1974 (R)	23.12.1974
ZAMBIA	21.06.1985 (R)	21.09.1985