Last month, the FBI marked 23 years since the theft of works of art from the Isabella Stewart Gardner Museum by hosting a press conference calling for leads by restating the large reward being offered.

A common feature in all instruments is the award of compensation to good faith possessors

October 2012 saw another ‘super art’ heist at the Kuhnsthal museum, Rotterdam. And now we hear de/de la Valette’s sword and dagger could visit Malta on loan in 2018.

The sword and dagger have their own colourful history in the way they have changed hands, were gifted or bequeathed. The same can be said of works of art which are stolen or illegally excavated and exported, and which then change hands several times in a number of jurisdictions. The problem will always lie in the recovery. What are the legal implications? What if the item leaves the country? What if it resurfaces after the legal prescriptive period has elapsed? What if someone, somewhere, unaware of the theft has acquired it in good faith?

These considerations spurred the international community to draw up conventions. The first appeared in 1970 – the Unesco Convention on the means of prohibiting and preventing the illicit import, export or transfer of ownership of cultural property. The Convention offered countries a hope to recover illegally exported items, but failed to provide redress to people who suffered theft. The 1995 Unidroit Convention on stolen or illegally exported cultural objects widened the remit of return to apply to stolen works.

Countries which have chosen to opt out of these conventions are the UK and Switzerland, which have done so out of choice. They are famously art market nations, which, by staying out, have removed the risk of receiving countless requests for return.

In 1993, the EU issued a directive on the return of cultural objects unlawfully removed from the territory of a member state. This served to harmonise the Community’s market, and highlight the value of cultural objects.

The core provisions require the requested member states to return “unlawfully removed” objects which are now found within their territory. Return is not possible if the removal has ceased to be an unlawful activity.

Malta, unfortunately is not a signatory to any of the international conventions, but did transpose the EU directive into Maltese law in 2003. Even though the directive is not a worldwide solution, since it only applies between EU member states, it is nevertheless a good start.

The procedure laid out in the directive consists in an initial, written request from one member state to another; people or institutions do not have direct rights – creating bureaucratic problems. The requesting member state must know the whereabouts of the object and the identity of the person holding it, whether as possessor or holder of the object.

A common feature in all these instruments is the award of compensation to good faith possessors.

The Unesco Convention provides for just compensation to innocent purchasers, while Unidroit is more vocal and states that compensation is due when the possessor neither knew nor reasonably ought to have known that the object was stolen, and can prove that due diligence was exercised in acquisition.

Proving this may be difficult, so Unidroit stipulates that all circumstances are taken into account, including, for example, whether the buyer had consulted a register of stolen cultural objects.

According to the directive, if the current possessor had exercised due care when acquiring the item, then the requesting member state will have to compensate the good faith possessor for the recovery.

These instruments try to give life to the “long arm of the law” in the art world. However, they have their shortcomings, most notably their non-retroactivity, and therefore cannot be applied to looting or theft which has taken place before their entry into force.

This would apply to the legal arguments for the return of the sword and dagger, which, however, thanks to a gracious diplomatic effort, may nevertheless find themselves in Malta again, on loan for a while, in 2018.

www.fenechlaw.com

Jeanine Rizzo specialises in intellectual property law and art law at Fenech and Fenech Advocates.

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