UNESCO
1970 CONVENTION.
INTERNATIONAL INSTRUMENT FOR THE PROTECTION OF
THE MOVABLE CULTURAL HERITAGE OF NATIONS
(By Peruvian Dr. Cecilia Bákula, PhD in History, Professor at the Pontificia Universidad
Católica del Perú and Director of the Museum of the Banco Central de Reserva del Perú.
She is a member of ICOM and is also member of the Board of Directors of the ICOMOS
Peruvian Committee)
The novelty of the UNESCO Convention resides in the fact that it denounces and alerts
for the first time on the illicit traffic of cultural property; it openly declares the social
value of these objects; it expresses ethical arguments and proposes a series of preventive
actions to attack this scourge and prevent this illegal traffic from interrupting the memory
of nations, who must be able to structure their identity on the basis of the material
elements making up their past and their national personality. This document revealed that
the concept of “National Heritage” includes a broad spectrum of material objects, which
are represented not only by a series of sites and monuments , ¹¹ but also by the flora and
fauna, mineral and paleontological specimens, archaeological and ethnological objects,
elements from decorative arts, manuscripts, books and incunabula, as well as sound,
photographic and cinematographic archives, and it set out the guidelines for the
protection of the Cultural Heritage of any period of time. Going a step further, according
to this Convention, it would be each State’s responsibility to apply the necessary legal
and administrative sanctions. ¹² But these are precisely the aspects which have been most
ignored in our region and we don’t really have many positive examples of what should
mean “a really serious warning” for those responsible for this traffic.
It is therefore not enough to adopt these texts; they must be ratified and, of course,
implemented; these would then be the required steps to go from a rhetoric attitude to a
concrete action, thus obtaining results that would encourage others to implement this
Convention.
Within this activity related to material heritage, UNESCO has articulated its action
around three main aspects: prevention, management, and intervention, and the 1970
Convention has given unity to all three in order to articulate what the States Parties will
be doing in their aspirations for peace, respect, and equity, their most important mission
being the protection of the cultural heritage of mankind, and it is in this very mission that
all of us, States and individuals, must feel committed.
Though all this should be enough to prove the importance of the 1970 UNESCO
Convention, it becomes necessary to stress some of its aspects, which we will express in
three general groups.
a) Regulations that all UNESCO Member States and signatories of the Convention
must comply with, though each is free to apply them according to their specific
legal structure. ¹³
As we all know, in some States there are conflicts and contradictions between their
numerous internal regulations; they should be revised and reordered to serve as the
correct basis for a coherent formulation of the cultural policy for these countries in
particular, and the region as a whole. We must recognize the fact that there have been
recent efforts and campaigns to create awareness and to demand from local authorities
the adoption of adequate regulations. (14) The States who have adopted this legal
instrument have also been called on to take all the necessary measures to prohibit the
export of cultural objects, with the specific exception of those holding the necessary
permits. Each country must make a permanent analysis of these internal regulations so
they can be adapted to the constant changes taking place in the modus operandi of illegal
traders, thus giving local authorities improved legal instruments for their preventive
action. These regulations must be made known to all those involved or related to these
import and/or export activities.
The countries of Latin America and the Caribbean, whose movable cultural heritage is
being affected by plunder, destruction and illicit traffic, must revise and update their
respective legal rules and put them in step with the conventions subscribed by these
countries, so they can be as useful as they were meant to be.
There are some interesting examples: the case of Bolivia, whose Political Constitution,
adopted in 1995, declares in its Article 137 the “public and inviolable property” of the
Nation’s heritage, and Article 191 makes an even more concrete mention of this fact as it
establishes that “monuments and archaeological objects are State property, and the
artistic heritage from colonial times, archaeology, history, documents or belonging to
religious cults constitutes our cultural treasure […]” (15)
In January of this year [2003] the Chilean Government revised the text of its law 17.228
“On National Monuments” (the original text was drafted in 1970), which makes a
specific mention of the States’ custody and protection of the objects defined therein, and
Article 14 establishes regulations for their export. Though this is a recent text that
incorporates the principles proclaimed by UNESCO, Chile has not yet subscribed the
1970 Convention nor the UNIDROIT Convention—which constitute legal instruments
adjusted to the relations and actions of most of the countries involved, as providers or
receivers, in this scourge represented today by: the illicit traffic of our cultural heritage.
b) Preventive actions aimed at the understanding and management of the cultural
property each State has recognized as its own property, and now in danger.
c) International cooperation, since no action, however wonderful it may seem, can
be efficient enough unless it counts on the participation of other States and the
support of agencies such as the International Council of Museums (ICOM) and
INTERPOL. As an example of this cooperation we might mention the “red lists,”
with proven results in the case of Africa’s heritage, whose countries have been
implementing them since the year 2002, as we shall describe later on. (16) We
should also mention the will shown by some States “receivers” of products
illicitly smuggled out of their original sites, and who have subscribed bilateral
agreements between two countries in order to generate the most efficient barriers
to prevent these objects from entering their country and being sold within their
territory. (17)
A few examples can serve to prove to what extent different States want to avoid and stop
the illicit traffic going on in their territories of specific cultural objects coming from other
States with whom they have signed bilateral agreements. In spite of the positive results of
these instruments, they demand from “providing” countries like Peru, Bolivia, Colombia,
Mexico, Nicaragua and Panama, among others, the will to define and specify the objects
that must be safeguarded by such an agreement. The specialists will of course be required
to carry out arduous work, for these cultural objects now endangered must be specifically
described and defined—the protection agreed to does not cover absolutely all the objects
that a specific country considers as cultural property, but only those that have been
specifically declared as such by that agreement. (18)
The Register of Cultural Property. An Efficient Action
One of the most efficient ways to understand your cultural heritage, be it movable or
immovable, is to register it; registration is a necessary instrument to know, control and
value the objects that may or not be endangered, in order to promote campaigns .to
strengthen awareness and prevention, and be in a position to defend, manage and
preserve what each nation considers part of its cultural heritage. Each State is responsible
for defining its own norms and design its own strategies to make this registration an
efficient and sure instrument. There are numerous ways to register cultural property,
UNESCO only wants each country to assume this task and is not concerned with the
system chosen.
The 1970 Convention concentrates many of its expectations for a successful
implementation of this registration in its appeal to the signatory countries to make a
commitment in relation to this task (19) Stating this commitment so crudely might make
it seem excessive and above and beyond anybody’s capacities. Many people think it
would be impossible to materialize this register (20), but far from discouraging, all these
opinions are but one more reason and one more motivation to go forward. The register is
needed and every country must adapt it to its own reality, its own needs, and its specific
possibilities. (21) But this is an important and long-range commitment, particularly in
the countries possessing and therefore originating the kind of cultural property that
attracts the attention of the international market—it will be useful, therefore, only if the
States define in their specific legislations exactly which objects of their national and
cultural heritage must be protected. And this would imply an inventory of what they
consider to be their heritage. Every State adhering to the UNESCO Convention will then
be required to draft and update a list of their cultural property whose export would
notably impoverish their national heritage.
We must become well aware that the absence of such an inventory can only make us
aware—when it becomes too late to do anything about it—of the fact that we knew
nothing about what we lost, since the lack of elements to identify these objects becomes,
in the long run, a true obstacle to recover them and really makes the task easier for
exporters and illicit traders.
Documents and inventories are important when they represent well-known and unique
works of art belonging to national treasures, but they can become crucial when the
objects needing protection are less well known. The importance of these documents has
long-since been recognized internationally as a vital part of the struggle against the illicit
traffic of our cultural heritage. (22)
While we are on this topic we must mention the efforts made by institutions such as the
Paul Getty Foundation. We will develop this aspect further on , together with other
progress in countries of our own region. UNESCO cooperates with the Getty Research
Institute to adopt an international standard known as “Object ID.” It is specifically meant
for the quick and simple registration of database or the minimum essential characteristics
to identify—and therefore recover—works of art placed on the international market.
Having recognized the increase in the illicit traffic of cultural objects, there is a general
consensus on the urgent need to create a system for uniform international data to facilitate
the use and exchange of information, even though on an internal scale, each country is
free to draft its own inventory programs, adapted to the specific characteristics of the
heritage it wants to protect.
As a result of this common effort by museums, art dealers, organizations linked to the defense of our
cultural heritage, police and customs agencies, insurance companies, collectors and representatives of
numerous agencies managing culture, there is now an “Object Identification Checklist, a short list of
information normally known as “Object ID.” It is used to gather the most important data on
endangered property, or on those to be protected in case this information is needed to identify the
object, taking into account that not all those involved in the recovery of stolen goods or participating
in networks for illicit traffic are experts in all the forms of art and cultural expression endangered
throughout the whole world.
As soon as this checklist is made up, each State is then responsible for its dissemination, and to make sure
it is correctly used by museums, collectors and agents linked to the defense of this cultural heritage.
(23) “Object ID” does not substitute the need for a scientific registration card, it is merely a very
useful element to be taken into account by those managing objects from the cultural heritage that
might be in danger. (24) The information needed for this “Object ID” also helps INTERPOL, when
they request it to follow up theft and illicit traffic. As we have already mentioned, the forms drafted by
this international police agency are known as “CRIGEN Art Forms” and they have a very specific use
in their research. They constitute a very basic element but they do not substitute in any way the
registration form each object or each kind of object must have. (25)
In 1999, OIPC INTERPOL’s General Secretariat decided to prepare a CD-ROM to diffuse information on
stolen works of art under investigation. It is updated bimonthly and the last version has data and
images for 20 000 objects—a huge effort carried out by this international agency to place in the hands
of different authorities and agents linked to the defense and protection of our cultural heritage, the
kind of precise and orderly information they might need for operations leading to the successful
recovery and return of these works. (26)
The 1970 Convention clearly calls for action to make this register a priority, the responsibility of each
State Party, for it will be in the unique interest of the authentic owners and/or generators of these
endangered objects to assume the challenge of defining, identifying, classifying and describing the
works that are an evident part of their material cultural heritage.
The efforts carried out to systematize and standardize information have brought in the assistance of
different agencies and institutions such as INTERPOL, the World Customs Organization (WCO), and
the International Council of Museums (ICOM) to share and exchange information to recover and
defend whatever heritage may be at risk.
As we can see in UNESCO’s Manual for the Implementation of the 1970 Convention, we must make a
distinction between what is known as inventories and what is called other kinds of inventories of
cultural products.
An inventory is the use of information on every object of a whole group, including details essential for
accounting and security purposes. The inventory cards give information about the name of the objects,
their location, their place of origin, their inventory number(s), a description, a short history, their
material and dimensions, and references about where more information can be traced about the object
in question.
While national inventories try to include everything belonging to the heritage in question, lists are much
more limited. In Article 5 of the 1970 Convention (see note 20), it is implicitly supposed that there is a
national inventory on protected heritage that should be used as the basis for a list of important
cultural property.
But some countries either lack inventories or have very poor ones. If that is the case, one way to get a list
of the important cultural heritage, be it public or private, is to use the registration of public, semi-
public and private collections as a basis for the inventory. The rest of the objects can be added to it
later on.
We cannot overemphasize the importance and usefulness of drafting a complete and detailed
documentation of whatever object may be considered cultural property. The existence of this
documentation has a direct rapport with the successful protection of the cultural products of any
country. (27) In many countries, the definition of a cultural product does not include all cases where
their export should be controlled. Many of the first laws relating to heritage mentioned antiques, so the
countries that followed these initial laws (28) in their own legislation keep repeating the same pattern.
The selection and drafting of a system to register these objects somehow depends on the definition each
country will make of their cultural heritage and their human and material possibilities. There are now
three currents that we should mention here:
(a) The category method makes a general description to establish what must be protected: (… all movable
property with a prehistoric, historic, philosophic, artistic and archeological interest, existing on or
under any State public or private property, territories or public institutions). This is a case where the
category method will use general descriptions (such as the one mentioned) covering a broader
spectrum relative to what must be included.
(b) The enumeration method describes each kind of object included and protected. For example: “…any
statue, sculpture, religious mask, musical instrument, ceramics…--and the list can be a long one—
created before a specific date.” The enumeration system is very frequently used when the legislation is
drafted in English.
(c) Under the classification method, descriptions become even more specific: an object becomes protected
only when an administrative decision has been made by a person named especially to protect a specific
object. Once the decision has been made, a whole series of protections are then applied (including the
prohibition to export it) to the object in question. The classification of cultural products is used as a
basis for legislation on this subject inspired in French laws. (30)
It is urgent and necessary to become aware of the importance of using adequate registrations and
inventories; for the time being they are the only efficient way to improve understanding of our national
cultural heritage, of endangered properties, and to carry out pertinent actions to recover either stolen
or illicitly-exported property. There are numerous cases in the countries of our region: many of their
properties have never been recovered because they lacked the necessary documentation to claim
restitution and return, and there have even been difficulties to determine the origin and the property of
a State over a movable object.
Many meetings and documents stress the importance of inventories with as many details as possible,
preferably with a photographic register--they become the basis to begin efficient actions to defend our
cultural heritage. While the countries suffering this illicit traffic lack this information, many of their
actions will be just good-will attempts with no positive results in the preservation, defense and
recovery of their cultural heritage. As we have already mentioned in this paper, inventories must not
be seen as just a series of useful data and references to claim stolen or illicitly-exported objects, or
those incorporated into the illegal market of works of art; the value of this registration goes way
beyond, since it will mean the possibility of discovering, studying and understanding the value of the
cultural heritage of each country. Then, and only then, will it be possible to do something toward their
recovery. And if this understanding really increases future knowledge and helps develop research, then
the time will right for a qualified registration to prevent theft and illicit exportation. This subject might
seem to carry its own contradiction and the impossibility of making it come true. It is a paradox that
the countries most urgently in need of these methods because they are providing countries and truly
suffer the consequences of the illicit traffic of their cultural heritage, are at the same time the poorest
ones, having to make a very strict use of scarce budgets. But within the framework of international
cooperation, there are different funding sources they can request, most of which only ask that the
States interested in this assistance provide the correct counterpart in this struggle to defend their
heritage: the initial inventory.
There is, of course, a practical difficulty in protecting all cultural objects that could be stolen, and this
situation becomes even worse for objects in museums or collections with inefficient or nonexistent
security measures, and if we add the lack of registers, then the problem becomes impossible: it cannot
be attacked, much less solved. That is why we are stressing the importance of specific and precise
legal regulations to define not only what is meant by “cultural heritage,” but also to state and define
the criteria of “property” and establish the responsibilities and sanctions these countries can and want
to implement.
In Third World countries, there are no registers available even for State collections, and if there is no law
requiring these registers, no one can even imagine the magnitude of what should be protected. It then
becomes very necessary for every State to sign the 1970 Convention, and become aware of its
obligations--in relation to the register, for example—when they subscribe this international document,
and do whatever they must for this task. This is not a unilateral option or decision—the States Parties
are obliged to act in a firm and direct manner.
In many cases, museums have been working on inventories--they are the institutions par excellence
responsible for the safeguard of their cultural heritage. This activity is not always part of a national
policy but it can become the starting point for the understanding and recovery of our Cultural
Heritage.
As far as important privately-owned collections is concerned, the most complex cases are related to objects
owned and preserved by religious institutions, since they are generally related to the cult itself and the
specific values of that religion, and it is difficult to understand that they should be considered part of
the cultural property of any people in particular. Many churches and temples have limited security
measures, and at times they have only a remote idea of the true value of their cultural treasures. In the
Andean region, for example, the situation is increasingly critical, and there are daily reports of the
brazen and shameless plunder going on in temples and convents. We can quote as a recent example the
impressive number (31) of known and denounced thefts in Peruvian temples—and we are concerned
that the number could increase to unforeseen dimensions. In spite of all this, it is worthwhile
mentioning that already in 1999, through the Episcopalian Commission for the Cultural Property of
the Church, the Peruvian Episcopalian Conference drafted a document for massive diffusion known as
the Manual of Instructions for the Protection of the Artistic and Historic Heritage of the Church: a
pioneer in its field since it drafted the elementary norms to register these objects. (32) And the Holy
See’s firm and clear stand has also been of great encouragement, for it has established the norms that
all its churches must use to register their cultural properties, not only to safeguard this heritage but
also to guarantee that it will always be used in religious cults—its original and only mission.
It is clearly stated in the Pontifical document that these works of art that the Church possesses and protects
are religious in meaning and what unscrupulous illicit traders and collectors covet most in different
parts of the world. Once this concept is clearly understood, it is then possible to make it valid for
ecclesiastical museums, as the document clearly states that even an ecclesiastic museum, and all that
is contained within, is intimately related to ecclesiastic history, because it represents a visible
documentation about the centuries’ long evolution of the Church in cult, catechesis, culture and
charity. An ecclesiastic museum is, therefore, the place that registers not only the development of
cultural and religious life, but also the talent man has put to work to guarantee the present.
It cannot, therefore, be seen as an (absolutely) separate aspect from overall pastoral activities—it must be
seen as part of religious life in general and in its relation with the historic and artistic heritage of each
nation and each culture. The ecclesiastic museum must necessarily become an integral part of pastoral
activities, in order to reflect the life of the church through a global approach to the historic and
artistic heritage. (33)
Clearly, the Catholic Church is very much aware of the cultural worth of its movable heritage, but it
stresses the fact that from the very beginning, the main aspect of that value is the religious and
ceremonial meaning man has given it with its creativity and material efforts. It does try to use the very
best mechanisms to understand and identify this highly mistreated and plundered heritage that it wants
to protect from pillage and illicit traffic; from a purely cultural point of view these are illegal activities
with penal connotations, whereas from a religious perspective, they are considered sacrilegious acts.
The alarming number of thefts reported in Peruvian temples in recent years leave no doubt about the
urgency to register their heritage, and this action is firmly called for not only by cultural authorities
but the Holy See itself.(34)
We are not talking here just of declared intentions; both documents are strongly worded and they must be
implemented as a legal mandate. (35) They have “collected and organized dispersed information and
universal knowledge, which might explain some misunderstandings among laymen […]”.. (36)
As far as drafting norms and implementing registration systems is concerned, the Latin American and
Caribbean countries have made great progress during the last ten years or so, beginning with their
awareness of the key postulates of the 1970 Convention and their conviction that getting to know their
own cultural heritage will be their first instrument in its defense.
Though the “Object 10” guidelines have been made widely known and can be considered in many cases a
positive initial and emergency action, the best register is much more complex and significant, as it
must gather all the information available to increase knowledge on this heritage, and not just cold
facts to identify it.
We have already mentioned the efforts carried out by some countries of the region to draft legal
regulations which could become efficient instruments to defend this cultural heritage, and we have
specifically mentioned the most outstanding cases. We would like to talk about Colombia now—it is
not unique but exemplary, due to its internal situation, where the country must face not only the
problems generated by internal violence but also the illicit traffic of its cultural heritage, and how it
goes about this struggle in such an emblematic and outstanding way that many countries could learn
from this experience. To help defend its cultural properties, this country has created a database for
State museums and collections, but it could later be applied to its entire cultural heritage. They are
now beginning to see positive results, as they have been able to organize their data and norms, and
this effort is now an integral part of the nation’s policy to defend their cultural heritage. They have
been using a computer program that is now widely accepted and implemented in the region, called
Colecciones Virtuales [Virtual Collections]. It was developed using FilePro software as a starting
point—a versatile instrument that can be adapted to many different situations. In computer slang it is
called a friendly tool that even laymen can use to their advantage.
The system can also enter information fields from different perspectives and parameters (culture, place,
type, material, date, etc.); it may include images, and has efficient mechanisms to block access to
specific information such as value, private data about each museum or collection, reserved
information--just anything that must remain in secret. The system can be placed on the Internet and it
can be consulted in real time from any part of the world. (37)
The Centro de Documentación de Bienes Patrimoniales, registered under the Vice Department of Museums
of Chile, has also been doing excellent work: a group of researchers has been drafting a Thesaurus
that would work like a dictionary and find the equivalents between Spanish and English, taking off
from the Getty Institute’s Art and Architecture Thesaurus (AAT) that has already been used to define
the criteria included in “Object ID”. (38) All this would help find a standard vocabulary and create
models for similar concepts when facing similar words. An enormous task if we take into account the
variety and infinity of meanings a single word may have, and the idiomatic differences that multiply
this complexity. The idea is to help museums perfect and standardize their registration systems, to
guarantee excellent entries in their system and in the information contained therein.
As far as the region is concerned, our aim should be policies to draft documentation that would allow at
least the following aspects:
1. Identify the objects by description and context;
2. Introduce photographs in the register;
3. Allow for the introduction of documentation;
4. Allow experts and others to use this information;
5. Diffuse the register on the Internet;
6. Contribute to control- and search-actions;
7. Encourage diffusion and motivate exchanges;
8. Generate awareness and pride;
9. Stimulate research; and
10. Avoid illicit traffic.
In spite of all the risks already mentioned in relation to the diversity in registers and levels of information,
each State will be responsible for the criteria it wishes to apply for its own heritage as well as the
internal regulations to find all possible information.
The UNIDROIT Convention: An Ally in the Defense of Movable Cultural Heritage
We must stress the importance of the UNIDROIT Convention and its timeliness; the 1970 Convention
recognizes the fact that when it was first drafted (and even nowadays), illicit traffic of cultural objects
was one the main causes for the impoverishment of poor countries, which are paradoxically the main
providers of movable cultural objects.
As it was beginning to reach uncontrollable dimensions, this situation demanded State-drafted adequate
legislation, the register of each individual heritage, and the development of educational and awareness
campaigns. Though way beyond the economic and technical possibilities of most “providing and
exporting” States, many of them did incorporate this situation in their legislation, but still had a long
way to go before implementing it in a practical and effective way.
The UNIDROIT Convention was thus opportune and convenient, since its text incorporated the possibility
of recovering what had been “illegally excavated,” and did not necessarily have a registration card
nor was it included in the official documentation of each country. This has increased possible claims
for restitution, since in the past they had to submit the register or a similar documents supporting the
claim—and all this makes for a vicious circle that includes lack of understanding and absence of
awareness. (39) Though recognizing the importance of such a document—a pioneer in its field--, and
that it is still significantly valid, some aspects were not taken into account, such as international
legislation and the need to reevaluate the protection of what is known as buyers exercising due
diligence, a very important subject. There was some kind of protection already in 1970, but when
UNESCO itself requested that the UNIDROIT Convention be drafted, the situation changed
completely: now, even if the buyer has exercised due diligence, he must return the object, and if due
diligence cannot be absolutely and clearly established, he will then be unable to claim compensation
for the restitution of the object. (40)
UNIDROIT are the initials corresponding to the Institute for the Unification of Private Law, in Rome.
UNESCO considered it a serious institution with important contributions to the matter, and believed it
necessary, therefore, for UNIDROIT to propose a document to complement the 1970 Convention and
engage the action and participation of all States who would subscribe this new Convention, whose aim
is to coordinate interests, join wills and unify legal criteria for the defense of movable cultural
heritage and the prohibition of illicit traffic. This is now a good occasion to help diffuse these basic
documents.
Without a doubt, this instrument has defenders and detractors, and its postulates are valid only among
subscribing States, making it just a substantive document that cannot yet be used by all States affected
by illicit traffic. No one doubts that the implementation of this legal instrument, that should be
subscribed by the international community without exception, could be the most efficient turning point
in the exercise of coherent and harmonious actions between all States affected by illicit traffic, or who
want to join the common cause to prevent this traffic, stop it, and sanction it in their territories.
Both the 1970 and the UNIDROIT Conventions are the most reasonable and efficient set of regulations for
the defense of our nations’ cultural heritage; their implementation and correct and beneficial
application to repress the growing illicit traffic of cultural objects requires the participation of all
nations and the solidarity of those not necessarily affected either actively or passively in this cultural
drama. They reflect what UNESCO’ ex Director General Amadou Mahtar M’Bow said in 1978, when
he referred directly to the problem of the illicit traffic of cultural objects, calling for the return to their
original countries of at least those artistic treasures that represent their culture, those that their
peoples feel would be the most vital ones, and whose absence causes terrible pain.
There have been recent examples of the struggle for the return of cultural property. Greece has been
recently fighting once again to recover the Parthenon friezes, which are now in Great Britain, and
their absence can be interpreted as a terrible loss for the identity of the Greek people.
Besides its bold and original proposal, calling for the common responsibility of mankind over the defense
and conservation of its own cultural heritage, the 1970 Convention reveals uniquely important moral
and ethical guidelines never before so clearly expressed, nor incorporated in the general concerns of
our countries or the obligation for our governments to include these subjects in their administrative
and political agendas.
Until 1970, the problems related to our cultural heritage occupied very little space in international legal
instruments or in bilateral declarations. It is true that there were a few basic declarations, such as the
1964 Charter of Venice and the Convention for the Protection of Cultural Property in the Event of
Armed Conflict, also known as The Hague Convention, which called for reflection and decision-
making for cultural heritage, but their action was limited to wars, whose consequences in the
destruction of sites, centers and properties of our nations cultural heritage had become a serious
problem for the world, particularly after the Second World War. (41)
NOTES
(11) As established in the 1964 Charter of Venice, known as the International Charter on the Conservation
and Restoration of Monuments and Historic-Artistic Groups. This document can well be considered
the founding act of ICOMOS. As can be seen from the wording of its title, the international concern
shown in official documents had to do mostly with monuments and immovable property. It is the 1970
Convention that first guides the attention of the world toward movable cultural objects. This is also
part of an interesting process Third World countries have been going through, discovering and valuing
themselves and understanding that they own a nonrenewable cultural heritage. We would recommend
that all those in charge of protecting our nations’ cultural heritage study these basic documents, which
can be found in an annex at the end of this essay.
(12) Article 8 is very clear on this point: “The States Parties to this Convention undertake to impose
penalties or administrative sanctions on any person responsible for infringing the prohibitions (…)”
referred to under Article 7.
(13) Peru is a good example. The Congress of the Republic must revise a new bill that would substitute
Law No. 24047, called the Ley General de Amparo al Patrimonio Cultural de la Nación, now in force.
Since its approval in 1985, the law has been criticized and it has not become the efficient instrument it
should have been to defend their cultural heritage, because it has not encouraged—as we will mention
later on—the recovery of objects illicitly exported from Peru, nor has it avoided an increase in illegal
trade, nor contributed to improve the conservation of the movable and immovable cultural heritage of
the country. That law was not legislated on and it has required several laws to modify it.
(14) Speaking of legislation for our cultural heritage, countries such as Cuba, Mexico, Bolivia and
Colombia have made extraordinary progress. During the last few years Colombia created the Ministry
for Culture, defined as the “guiding body for Colombia’s cultural policy…It is also responsible for the
preservation, the promotion and the diffusion of our cultural heritage, in order to help develop a
culture for peace.”
(15) Bolivia has a progressive Constitution because it refers to the objects of its cultural heritage and it
also mentions specifically the need to organize a register for the property protected by the Bolivian
State, but we have been able to verify that according to its legislation, if a cultural object from another
country stays in Bolivian territory for at least three years, it is then considered part of that country’s
heritage. This constituted a contradiction with the UNIDROIT Convention, also signed by Bolivia,
since this instruments specifies a period of time of up to 75 years after an object has gone out of a
country, for the original country to exercise its right to claim the restitution and/or return and that this
claim will not prescribe even when the object in question is owned by the State or by the Church. When
the UNIDROIT Convention mentions the three-year period, it is referring to the period of time to
discover or prove that a specific object is in another country.
(16) One of the most important conclusions of the Third Regional Workshop against Illicit Traffic of
Cultural Property, held in Bogotá in April 2002, was to draft the “Red List” for endangered objects
belonging to the cultural heritage of countries from Latin America and the Caribbean. Later on in this
essay we shall make a specific reference to it.
(17) We could use as a reference point the Memorandum of Understanding signed at the end of the 60s
between Peru and the United States of North America to prevent objects from entering this latter
country if they had been the object of plunder (huaqueos) originating in the discovery of important
archeological sites in the Sipan region, on the northern Peruvian coast, which unleashed the greed
and interest of collectionists all over the world. The Memorandum, named Memorandum of
Understanding between the Government of the United States of America and the Government of Peru
on the Imposition of Import Restrictions on Archeological Material from Pre-Hispanic Cultures and
Other Ethnological Material from the Colonial Period of Peru, was a pioneer in the region. It was
signed in 1989 and set the example for other countries to sign similar documents, as other States have
already done.
(18) Memoranda subscribed with the United States must be periodically renewed; in the case of Peru, for
example, the agreement in force was signed in 1997, renewed in the year 2002 and will be in force for
five more years. The Memorandum between Bolivia and the United States was signed in 2001, though
there was a previous one that only mentioned the Coroma textiles; Nicaragua signed a similar
agreement in 1997, but only for objects from the Petén. The Memorandum between Bolivia and the
United States has been in force since 2001. Nicaragua signed a similar one in 1997, and both El
Salvador and Guatemala have followed this example. In all these cases, the Memoranda of
Understanding establish general regulations for action, and the detailed list of the objects is an
additional document registered in the Federal Register of the United States. Because of the importance
of this document and the fact that it was a pioneer in this field, it should be consulted on the following
electronic page: http://www.exchange.state.gov/culprop/1pe97agr.html. The database contains both
descriptions and pictures of representative objects and has been designed for consultation by officers
of US Customs; it is so far the only initiative for the implementation of these agreements.
(19) Article 5 mentions the steps to be followed: “To ensure the protection of their cultural property
against illicit import, export and transfer of ownership, the States Parties to this Convention
undertake, as appropriate for each country, to set up within their territories one or more national
services, where such services do not already exist, for the protection of the cultural heritage, with a
qualified staff sufficient in number for the effective carrying out of the following functions […]”
Paragraph (b) says: ”establishing and keeping up to date, on the bases of a national inventory of
protected property, a list of important public and private cultural property whose export would
constitute an appreciable impoverishment of the national cultural heritage.” It is interesting to note
that for the purposes of this register, the Convention makes no difference between publicly-owned or
privately-owned property from the cultural heritage. The register only forces the State to prepare such
an inventory, in order to end up with a national inventory—and that is the final goal.
(20) Linda Young, op. cit., refers to the subject of the register as a second weakness of the 1970
Convention. She says that the register cannot be carried out because it is a complex, difficult and
expensive task, particularly for poor countries. In our opinion, the register is an imperative need; it is
a basic weapon for the knowledge, management and defense of our cultural heritage, especially for
poor countries with a cultural heritage.
(21) The evident need for the register can often clash with the real possibilities of carrying it out. It might
be necessary for States affected by illicit traffic to develop highly imaginative methods to avail
themselves of the necessary information—at times, superficial; at others, incomplete—to defend their
heritage. There have been numerous discussions on this subject, which has not yet been solved. We
know, for example, that some objects come from archeological sites defined only by what is known as
huaqueros (people who profane tombs), and it is impossible to document these objects or to obtain
sufficient proof of their activity. The “Red List” that has been proposed and that is being worked on
throughout Latin America should at least recognize the need to start with a quantitative register and a
list of the sites that have already been plundered, adding any available information to be able to
answer judges and police officers whenever they request data on Where? When? How? This initial
information would at least allow establishing links between objects that could come from the same
archeological site, yet unknown or studied by archeologists.
(22) UNESCO. Preventing the Illicit Traffic in Cultural Property…This manual analyzes this Convention in
detail and it includes numerous other documents on the implementation of this instrument and of the
UNIDROIT Convention, shedding light on the defense of our cultural heritage. It is worthwhile to
study its guidelines for the 1970 Convention’s implementation, and in particular the steps to be taken
nationally, stressing the importance of the register.
(23) Those responsible for preparing this card known as “Object ID” declare that illicit trade of artistic
objects is generally considered one of the most frequent forms of international crime. Without a doubt,
one of the crucial elements for the protection of stolen cultural objects is documentation, as can be
proven by the fact that they are rarely recovered if there are no descriptions or photographs
representing them. There are unfortunately very few objects whose description is precise enough to
allow for their recovery in case of theft. And even when the objects have been documented, the
information may vary enormously. It is important, therefore, to do everything possible for the public to
see the need to describe the objects in an adequate and systematic way.
(24) People interested in more information on this aspect may get in contact with the Getty Research
Institute, 1200 Getty Center Drive, Los Angeles, California 90049-1681. They will also find more
information on web page: http://www.object-id.com/checklist/check_span.html. The Object ID card in
Spanish is included in the annexes. And those interested may consult “Introduction to Object ID.
Guidelines for the Description of Works of Art, Antiques and Archeological Objects,” by author Robin
Thornes in cooperation with Henry Lie. The book has been translated into Spanish by Marisol Jacas.
(25) Robin Thornes, “The Protection of Cultural Objects in the World of Global Information. Creation of
the NIDN for Objects.” In Museos, No. 22, Magazine for Chile’s Vice Department for Museums, in the
Department for Libraries, Archives and Museums, 1997. Doctor Thornes, art historian at the Getty
Institute, explains in this essay how to prepare an ID for each object, and analyzes the process to
accumulate data in order to apply the necessary standards to this identification, so the information can
be used by different bodies and agencies from any country.
(26) The CD-ROMs have been prepared in English, French and Spanish versions. Those interested may get
more information on the following electronic address: woa@interpol.int, or by opening web page:
http://www.interpol.int.
(27) It is pertinent to comment here that there is the risk of having multiple codes, which would prevent the
consolidation of information; this might also generate a true tide of data and instead of contributing to
the knowledge of the objects, this situation would complicate matters in an insoluble way. The 1970
Convention does not propose one system over another; it just establishes the need to have a register,
allowing each State—which has the best information about its own heritage—to define the necessary
norms. The body responsible for this work will have to establish the codes, categories and fields of
information, as broad but as precise as possible, so they can be easily implemented; they should
include measuring standards, as well as those necessary to describe the state of conservation and write
out descriptions.
(28) UNESCO. Preventing the Illicit Traffic in Cultural Property, pp. 36-37. It will also be extremely
important to consult other documents and recommendations. We would like to mention here the
UNESCO Recommendation on International Principles Applicable to Archaeological Excavations, a
major document drafted in 1995. We must also refer to the study carried out by L.V. Prott and P. J.
O’Keefe: “Legislative Measures and National Regulations for the Struggle against the Illicit Traffic of
Cultural Property,” published by UNESCO in 1983. And the International Guide for Information
Relative to Museum Collections should also be consulted, together with the C/DOC. categories for
information published by this ICOM committee in 1995.
(29) UNESCO, Preventing the Illicit Traffic in Cultural Property, pp. 37-38. No method can be considered
absolute; each has its own advantages, disadvantages, strong points and weak points. UNESCO
encourages all States to prepare the register, but gives them the freedom to decide how to go about it,
according to their own characteristics. The International Organization of Criminal Police (known as
INTERPOL), has seen the need to have its own forms, used in all its offices around the world, when
they must study a claim or a charge on stolen objects pertaining to a cultural heritage. These forms do
not replace each country’s inventory or registration, they are only useful instruments so these offices
can obtain a minimum of information on the cultural objects in question. These forms are known as
CRIGEN Art Forms, whose present version was revised in 1995.
(30) The implementation of this system would have to be valued for each country of our region.. See:
http://www.culture.fr/documentation/joconde/methode.htm.
(31) The information has been taken from reports submitted by responsible people before the authorities of
Peru’s Instituto Nacional de Cultura. The number of objects reported stolen is so large that it gives an
idea of how fragile these religious objects are and how large their demand on art markets is, both in
Peru and abroad. We would like to stress the fact that we have included information only up to the
year 2002, and that it refers only to thefts or losses already claimed, which means that the numbers
could be even more alarming and dramatic.
(32) The Manual reprints an extract from the message His Holiness Pope John Paul II addressed in 1997
to those participating in the Second Assembly of the Pontifical Commission for the Cultural Property
of the Church, including a model filing card for the register and “Object ID” form, together with
simple norms to improve the knowledge, registration and security of endangered objects. We would
like to make a special mention of the work carried out by Monsignor Federico Richter Fernandez-
Prada, which is still valid in spite of the 1999 edition of the Manual. He uses simple and direct
language, which can be useful for all those in charge of protecting a valuable heritage and usually
lack the means and the knowledge for it. We take the liberty of giving the address of the Conferencia
Episcopal Peruana for those wishing to get copies of his work and additional information: Calle
Estados Unidos 838, Jesús María Lima 11, Peru.
(33) Circular Letter written in August 2001 on The Pastoral Function of Ecclesiastic Museums, reaffirming
the use and value of the objects protected in them, which includes, by extension, all objects and
monuments with or having had religious meaning.
(34) Circular Letter on the need and urgency to make an inventory and a catalogue of the churches’
cultural property, dated December 8, 1999. This document was published in the Vatican newspaper
but was not widely distributed. Several people of the region were consulted and they said they knew
nothing about it. We believe it is important to diffuse it and make it known, and we have included it
among the documents in the annex. It can also be consulted in
http://www.mercaba.org/OSSERVATORE/2000-04-21/07.htm.
(35) Besides these documents already mentioned, the Holy See has expressed its concern about the
conservation of its cultural heritage. This can be confirmed in the document Training for Future
Presbyters in Caring for the Cultural Property of the Church, dated October 15, 1992. They can all be
consulted in the Vatican’s web page: www.vatican.va
(36) Mariana Mould de Pease. Apuntes interculturales. Conservación y uso de los bienes culturales de la
Iglesia Católica en el Perú, Lima. Pontificia Universidad Católica del Perú, 2002, p. 142
.
(37) In Peru, this system has been well received and now some State and private museums are
implementing it quite successfully, with good perspectives. The system was first used by the Museum in
Peru’s Banco Central de Reserva, the Museo Nacional de la Cultura Peruana is about to put it in
practice, and at present, the whole collection of Lima’s Museo Larco is being registered in its
catalogue using this program, and shortly they will be able to put this information on their respective
web pages.
(38) The information has been taken from two articles: María Paz Aracena, Lina Nagel and Rodrigo Peña,
“Vocabulario normalizado para la documentación de colecciones,” and Marisol Jacas Santol, “Notas
sobre la elaboración de un tesauro bilingüe,” published in Museos, no. 22, magazine of the Vice
Department of Museums, of Chile’s Department of Libraries, Archives and Museums, 1997.
(39) Article 10 of the Convention categorically stresses the duty of the Member States to act accordingly
and in clause (b) it demands they “endeavour by educational means to create and develop in the
public mind a realization of the value of cultural property and the threat to the cultural heritage
created by theft, clandestine excavations and illicit exports.” These actions are still pending or in
process in many of our countries; it is a long and arduous path on which we make short and slow
progress.
(40) The UNIDROIT Convention states: “that the possessor neither knew nor ought reasonably to have
known that the object was stolen and can prove (…) it.” This clause has provoked antagonisms with
art dealers and with auction specialists because it forces them to do some acceptable research before
purchasing and/or selling a cultural object.
(41) The first protocol, also adopted in 1954, referred to international wars, whereas the 1999 one refers to
national ones.
(Article reprinted from Para un mejor conocimiento y uso de la Convención de 1970, pages 9-21,
published by the UNESCO Regional Office for Culture for Latin America and the Caribbean,
December 2003.)