Art & Loi 95 of November 14, 1970 cultural property By Yves-Bernard Debie Some clarifi cation may be needed here. In the language of the courts, citation directe (direct summons) does not mean “rapid summons” or “expedited procedure.” More than fi ve years would ultimately elapse between the seizure of the material in November of 2009 and the acquittal in March of 2015. During these long years, the defendant’s attorneys sought in vain to obtain access to the relevant fi les and clarifi cation of the charges. Given this, it was a relief to the defense when the charges were eventually specifi ed. The alleged infractions were enunciated and the reasons for the confi scation explained. In plain, non-legal language, the allegations were simple: The offence was the export between January 1, 2006, and November of 30, 2009, of goods protected by the UNESCO Convention of November 14, 1970, under “fraudulent” descriptions, as well as the laundering of the money obtained through their sale. The penalty for these violations alone would have been a fi ve- to ten-year prison term. The accusation is remarkable from the get-go given that, while the dealer was in Europe, both in Madagascar as well as in Guatemala, the goods were packed and shipped by specialized transport companies, and permission of local authorities had been sought and obtained for their export. Given these facts, how could the dealer in question have been found guilty of fraud? From a legal point of view, the allegation of fraud had no merit. Cultural Goods Protected by the 1970 UNESCO Convention: Which Ones and Since When? In addition to the question of how an individual could be guilty of fraud under these circumstances, there is perhaps the more interesting one of why one might commit such fraud. The prosecutor’s response was that the fraud was perpetrated between January 1, 2006, and November 30, 2009, to conceal the true identity of goods protected by the 1970 UNESCO Convention in order to import them to Europe. Duly noted, but were the litigated objects covered only by this agreement? Was the 1970 UNESCO Convention the only law applicable to them in Belgium between January 1, 2006, and November 30, 2009? These seemingly obvious questions apparently were not ones that the prosecutor took the time to consider. A Convention Requiring Ratifi cation As far as the timing of the application of the statutes of the 1970 UNESCO Convention is concerned, the almost unanimous but completely erroneous response is 1970. “What color was Napoleon’s white horse? White, of course.” “When did the 1970 UNESCO Convention rules become enforceable? 1970 of course.” No, wrong. UNESCO is an institution that was created on November 16, 1945, by the United Nations for the purpose of defending education, science, and culture. However, as noble as the institution and its principles may be, it has authority only to the extent that member states have signed on to it (195 states had in 2011). The convention thus applies only to a member state when that state has ratifi ed it, with or without exclusions —that is to say, when a member state has decided to accept it—and is not enforceable through its judicial system until such time as that has occurred. Moreover, article 7 of the UNESCO Convention specifi cally addresses the issues surrounding the illegal exit of objects “from a member state after ratifi cation of the convention ....” It stipulates that the convention must be in force in both countries, and that it is retroactively applicable. Here it should be noted that, while Guatemala ratifi ed the 1970 UNESCO Convention in 1985, Belgium did not do so until March 31, 2009, and then only with an ex-
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