UNESCO 1970 Convention in the Netherlands

The UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted in Paris on 14 November 1970, was accepted by The Kingdom of the Netherlands in 2009.

The 1970 UNESCO Convention on the Illicit Import, Export and Transfer of Ownership of Cultural Property (implementation) Act represents the implementation of the Netherlands of the 1970 UNESCO Convention. It embodies the legislation governing the import, export and return of cultural property and has no retroactive effect, which means that return procedures can only be started when cultural property has been illegally removed from a Member State after 1 July 2009.

The provisions of the Convention are non-self-executing.

There are three other relevant documents in relation to the implementation of the 1970 UNESCO Convention by the Netherlands:

  1. Explanatory Memorandum: Implementation of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property adopted in Paris on 14 November 1970 (1970 UNESCO Convention on the Illicit Import, Export and Transfer of Ownership of Cultural Property (Implementation) Act)
  2. Approval of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property adopted in Paris on 14 November 1970 (memo)
  3. Approval of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property adopted in Paris on 14 November 1970

In short, it is prohibited to import into the Netherlands cultural property which:

  1. has been removed from the territory of a State Party and is in breach of the provisions adopted by that State Party, in accordance with the objectives of the Convention in respect of the export of cultural property from that State Party or the transfer of ownership of cultural property; or
  2. has been unlawfully appropriated in a State Party (section 3 of the implementation Act).

Cultural property that has been brought into the Netherlands in breach of the provisions in the 1970 UNESCO Convention may be reclaimed by the Member State from which the property originated, or by the person with valid title to such property. The legal proceedings for return of the property are regulated in the articles 1011a-1011d of the Code of Civil Procedure. Defences to such proceedings based on acquisition in good faith (thus not aware that the cultural property was protected, acquisitive or extinctive prescription), or acquisition of a pledge in good faith, are wholly or partly suspended in a series of  amendments to the Civil Code. Both the provisions of the Code of Civil Procedures, and those of the Civil Code are in keeping with existing provisions of a similar nature introduced at the time of the Protection of Cultural Property against Illegal Export (Implementation) Act. There is a possibility for ‘fair compensation’ which could comprise the purchase price, sale transactions costs, and the costs of conservation. This compensation is to be determined by the Court. Trust is not enough to establish good faith, however; you must have done everything that could reasonably be expected of you to discover whether an object is in fact a legally protected cultural property, and be able to prove that you have done so. Section 6 of the 1970 UNESCO Convention on the Illicit Import, Export and Transfer of Ownership of Cultural Property (Implementation) Act mentions for example the consultation of every reasonably accessible register of stolen cultural property and any other relevant information and documentation which could reasonably be obtained and the consultation of accessible agencies.