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Unidroit Ratified Volume 51 Number 4, July/August 1998
by Patty Gerstenblith

The Unidroit Convention on the International Return of Stolen or Illegally Exported Cultural Objects will go into effect this July among the first five countries to ratify it. Like the 1970 UNESCO convention, it provides the means for a nation to recover stolen or illegally exported cultural property, including antiquities. Unlike the 1970 convention, however, Unidroit specifically equates illegal excavation with theft, giving source countries a basis for recovering illegally excavated objects under existing stolen property law.

Unidroit requires purchasers of stolen items to return them whether or not they acted in good faith. It also requires original owners to compensate good-faith buyers, a concession to civil-law countries, like Switzerland and France, which permit buyers who have acted in good faith to acquire title to stolen objects. While the convention should make it easier to recover material that turns up in civil-law countries, it may have the opposite effect in common-law countries, like the United States and England, where even good-faith purchasers do not acquire title to stolen property. Requiring payment of compensation may make it harder for poor countries to recover the most expensive items.

Under Unidroit, to qualify for good-faith compensation, possessors must do more than claim they did not know an object was stolen; they must also prove they "exercised due diligence when acquiring" it. In deciding whether someone exercised due diligence, "regard shall be had to all the circumstances of the acquisition, including the character of the parties" and what steps were taken to determine whether the object was stolen. This provision clearly places the burden of proving good faith on the party that seeks to take advantage of the good-faith purchaser doctrine. Furthermore, considering the character of the parties should help in cases where unprovenienced antiquities are purchased from dealers known on other occasions to have dealt in looted antiquities.

Unidroit also specifies that claims for the recovery of cultural objects must be brought within three years of when the claimant discovered the location of the object and the identity of its possessor, or within 50 years of the theft or illegal exportation, whichever comes first. An exception provides that objects belonging to a public collection or forming "an integral part of an identified monument or archaeological site" (mosaics affixed to a building, for example) are subject only to the three-year limit, unless the importing nation declares a blanket 75-year limit from the time of theft or illegal exportation when it joins the convention.

Unidroit was originally seen as an alternative to the UNESCO convention, which had not been signed by a number of major art-importing countries, including Japan and many European countries. The text was finalized in Rome on June 24, 1995. So far Romania, Lithuania, Paraguay, China, and Ecuador have ratified the convention, and it will go into effect among those countries this July. Eighteen other nations have signed, and of these, Italy, Switzerland, Finland, Hungary, and Ireland are working toward ratification.

Although the United States played an active role in writing Unidroit, it has not signed the convention. While the text was being drafted, a large consortium of American museums and art dealers filed a brief to the U.S. delegation asking the U.S. not to sign the convention and to withdraw the provision defining illegal excavation as theft. On the latter score the effort failed, but opposition from art museums, dealers, and collectors did help ensure that the U.S. never signed. Because the U.S. is part of the UNESCO convention, however, it has not seemed as urgent for the U.S. to adopt Unidroit.

* Click here for the full text of the Unidroit convention.

© 1998 by the Archaeological Institute of America