Revisiting the 2017 Nicosia Convention

November 6, 2024

By Eleanor Gartstein

A number of key frameworks are often cited as foundational to the field of international cultural heritage law. The 1954 Hague Convention focuses on cultural property protection during times of armed conflict, the 1970 UNESCO Convention tackles the issue via import-export controls, and the 1995 UNIDROIT Convention answers to private claimants and civil remedies. There is another relatively recent Convention, however, that is often forgotten in the mix.

Adopted on May 3, 2017 in Nicosia, Cyprus, The Council of Europe Convention on Offences Relating to Cultural Property (“Nicosia Convention”) is the only existing international treaty to impose criminal penalties upon proscribed crimes relating to cultural heritage.^[1] The Convention officially entered into force on April 1, 2022, triggered by its fifth signatory state, Hungary, depositing ratification.^[2]

Although convened by the Council of Europe and drawn up under the authority of the European Committee on Crime Problems, the Nicosia Convention was explicitly made open for signature by any state worldwide.^[3] Since opening for signature on May 19, 2017, the Convention has been signed by thirteen states.^[4] Only six have taken the additional step of ratification.^[5] These six are Latvia, Greece, Cyprus, Italy, Hungary, and one non-member state, Mexico.^[6] It’s worth noting the absence of market country participants in this very short, source-country dominated list.

Context to Creation: Why 2017?

As noted previously, various intergovernmental organizations have attempted to implement cultural heritage protection frameworks since the 1950s.^[7] Why reconvene to discuss new solutions to the same question in 2017?

There was no greater impetus to revive talks than the growing appreciation of cultural heritage’s proximity to terrorism and organized crime. The years preceding 2017 saw a sudden and acute realization that organized crime groups were often closely tied to the trafficking and destruction of cultural property, whether as a source of financing or in furtherance of their political aims.^[8] Ongoing geopolitical conflicts in the Middle East had put a spotlight on the issue; mass illicit excavations were taking place in Iraq, Afghanistan, Mali, and Syria.^[9] This led to an explosive increase in the flow of cultural objects originating from conflict-ridden territories.^[10] While unlawful excavations and clandestine diggers had been widespread in these countries for hundreds of years, the scale and damage seen during this time reached shocking levels.^[11]

With this realized connection, cultural property graduated to an increased level of importance in the eyes of multiple intergovernmental bodies, garnering attention far beyond the Council of Europe. UNESCO, UNIDROIT, UNODC, and the European Union had all come to a general consensus that existing mechanisms were insufficient, as evidenced by continuous rising rates in cultural property offenses.^[12] The resulting discussions that led to Nicosia’s criminal approach were in hopes of filling in the gaps as a continuous build on previous agreements.^[13]

Nicosia’s Preamble explicitly states the Convention is aimed at combating cultural property crimes within the broader framework of the fight against terrorism and organized crime.^[14] The United Nations Security Council also unanimously adopted Resolution 2347 in 2017, which similarly dealt with concerns of terrorism’s tie to cultural heritage crime and acknowledged “the ongoing efforts of the Council of Europe.”^[15]

Graduating Treatment: Why Criminal?

The disheartening reality of terrorism’s connection to cultural property crime fueled a desire to take a more punitive approach. The justification for imposing criminal penalties was that cultural heritage, as tangible testimony of history and identity, deserves the highest standard of international protection.^[16]

This was not the first time a criminal approach to cultural heritage protection had been seriously considered. The Nicosia Convention was designed to replace an earlier attempt, the 1985 Delphi Convention (“Delphi Convention”), which never reached the required minimum of signatories to ever enter into force.^[17] There were many objections to the practicality of the Delphi Convention’s provisions and a general belief it would be ineffective.^[18] Its harshest criticism was for failing to answer to the issue of acquiring stolen property in good faith.^[19] In response to these strong hesitations, the drafters of Nicosia consciously designed their second attempt to provide for more flexibility.^[20] So far, only six have seemed convinced these adaptations are enough.

The Proscribed Crimes

As for the substantive crimes themselves, Nicosia’s decided purpose was to deter and punish acts deemed to have a “direct impact on the preservation of cultural heritage.”^[21] Forgeries and fakes, for example, were not included – despite their serious nature, they do not have a direct impact on preservation and are instead issues of consumer protection.^[22]

The criminal provisions in the Convention cover, in short: (a) theft and unlawful appropriation, (b) unlawful excavation and removal, (c) illegal importation and exportation, (d) illegal acquisition of artifacts, (e) illegal placing on the international art market, (f) falsification of documents to prevent proper certification, and (g) damage or destruction of cultural property.^[23] The requisite mens rea for all the offenses is intentionality.^[24] The scope of the Convention is limited to tangible items of cultural heritage, although they can be either movable or immovable.^[25]

In ratifying the Nicosia Convention, states agree to apply their respective domestic criminal laws to the above acts and impose criminal penalties on them.^[26] Specifically, the offenses should be made “punishable by effective, proportionate, and dissuasive sanctions.”^[27]

The Proscribed Modes of Prevention

Aside from instituting criminal sanctions, another leading purpose of the Nicosia Convention was to outline state’s preventative obligations.^[28]

A resounding message throughout the text is the encouragement of states to further domestic measures. These recommendations include developing a national database with accessibility to archival information, introducing proper import and export controls, heightening due diligence requirements via mandatory reporting, and preventing freeports from being used to traffick cultural property.^[29] In response to the heightened vulnerability of cultural heritage objects in conflict zones, another suggested solution is to establish “safe havens,” where foreign movable cultural property that has become endangered can be safely conserved.^[30] On an international level, the Nicosia Convention obliges participant states, at least theoretically, to cooperate to the widest extent possible for the purposes of prevention.^[31] A suggested form of this is to contribute to the consolidation of information in international databases such as Interpol’s Stolen Works of Art.^[32]

Since the Nicosia Convention needed to provide states with more flexibility to avoid the fate of its 1985 predecessor, all of the above examples constitute mere suggestions.^[33] States remain free to establish their own legal solutions, so long as they are “compatible with the general framework” of the Convention.^[34]

“Into Effect” in 2022: Now What?

The Nicosia Convention entered into force after the fifth member-state ratified it in 2022.^[35] If ten ratifications are reached, the Committee of the Parties—the monitoring mechanism established by the Convention—will be allowed to convene for the first time.^[36]

Reaching that tenth ratification, however, does not appear to be feasible anytime soon. As it stands now, six ratifications are not enough to overcome the inherent transnational nature of cultural property crime. This makes it impossible to even get a glimpse of the results that would come if more nations adopted Nicosia’s provisions. For example, it is well known that antiquities traffickers frequently exploit the legal differences between civil and common law jurisdictions to wash money and legitimize their ownership.^[37] Without a common standard across many nations, protection is impossibly complex in the face of conflicting jurisdictions.^[38]

The existing ratifiers have recognized how potent the issue remains. In 2023, the Riga Conference convened to assess the efficacy of Nicosia’s implementation since its 2017 inception.^[39] Recognizing that cultural crimes continued to enjoy a high rate of impunity, much of the Conference was dedicated to the paramount objective of persuading more states to sign and ratify the Convention.^[40] The right answer seems yet to be found. Members again convened in June of 2024 in Zaragoza, Spain, in furtherance of the search for how to best protect heritage.^[41]

Conclusion

The Nicosia Convention is the first international legal instrument dedicated exclusively to criminal law issues in cultural property.^[42] Facially, it is the most broad and protective of any of the existing frameworks. The pressing question remains as to why the Nicosia Convention has gone so overlooked.

There are a few potential explanations for this. It could be that practically speaking, no market country is eager to sign onto a Convention that, by its nature, criminally targets its constituents the most. Alternatively, Nicosia’s provisions could be viewed as simply too unrealistic to commit to. The resources required to holistically enforce the suggested measures go far beyond what most governments are currently willing to invest in the matter.

Yet in light of today’s armed conflicts, there is a real urgency to implement proper preservation measures.^[43] A portion of the Riga Conference was dedicated to the current situation in Ukraine, which has and continues to suffer significant cultural loss.^[44] This is a pivotal point where reconsidering implementing the Nicosia Convention, even in part, could significantly prevent any further loss. This cannot be done effectively so long as market countries refrain from participation.

Suggested Readings and Videos:

• An Explanatory Report was released alongside the Convention. While not an authoritative interpretative instrument, it is designed to facilitate understanding of the Convention’s provisions.
• The draft concept for the 2023 Riga Conference, which stresses the urgency of the current situation in Ukraine.
• Council of Europe Video, Protecting cultural heritage from destruction and trafficking

About the Author:

Eleanor Gartstein is a second-year law student at the University of California, Berkeley School of Law. She holds a B.B.A. in International Business and a B.A. in Art History from the University of Texas at Austin. Her academic interests include international cultural heritage policy, art market regulations, restitution efforts, and museum issues.

References:

1. Council of Europe, Offences relating to Cultural Property, https://www.coe.int/en/web/culture-and-heritage/cultural-property. ↑
2. Athina Chanaki & Artemis Papathanassiou, The Council of Europe Convention on Offences relating to Cultural Property eventually enters into force: A new tool to the arsenal of international criminal law responses to the trafficking of cultural property, European Journal of Int’l Law (Apr. 14, 2022). https://www.ejiltalk.org/the-council-of-europe-convention-on-offences-relating-to-cultural-property-eventually-enters-into-force-a-new-tool-to-the-arsenal-of-international-criminal-law-responses-to-the-trafficking-of-c/. ↑
3. See Art. 28, The Council of Europe Convention on Offences relating to Cultural Property. ↑
4. Id. ↑
5. Id. ↑
6. Mateusz M. Bieczynski, The Nicosia Convention 2017: A New International Instrument Regarding Criminal Offences, 255-74, 258, Santander Art and Cultural Law Review 255 (2017). DOI: 10.4467/2450050XSNR.17.017.8432. ↑
7. See supra note 2. ↑
8. Chanaki & Papathanassiou, supra note 2. ↑
9. Id. ↑
10. Bieczynski, supra note 4, at 262. ↑
11. See Council of Europe, Protecting cultural heritage from destruction and trafficking (Jan. 14, 2017), https://www.youtube.com/watch?v=3_XuXR7mvGI. ↑
12. Chanaki & Papathanassiou, supra note 2. ↑
13. Anna Oriolo, The Nicosia Convention: A Global Treaty to Fight Cultural Property Crimes, 26 Am. Soc’y of Int’l Law 3 (2022). https://www.asil.org/insights/volume/26/issue/3. ↑
14. Oriolo, supra note 5. ↑
15. United Nations, Security Council Condemns Destruction, Smuggling of Cultural Heritage by Terrorist Groups, Unanimously Adopting Resolution 2347 (2017). https://press.un.org/en/2017/sc12764.doc.htm. ↑
16. Id. ↑
17. Chanaki & Papathanassiou, supra note 2. ↑
18. Id. ↑
19. Bieczynski, supra note 4, at 262. ↑
20. Chanaki & Papathanassiou, supra note 2. ↑
21. Council of Europe, Explanatory Report to the Council of Europe Convention on Offences relating to Cultural Property (2017), at 6, no. 32, https://rm.coe.int/1680a55237. ↑
22. Id. ↑
23. Council of Europe, Council of Europe Convention on Offences relating to Cultural Property, https://www.coe.int/en/web/culture-and-heritage/convention-on-offences-relating-to-cultural-property. ↑
24. Id. ↑
25. Bieczynski, supra note 4, at 261. ↑
26. Oriolo, supra note 5. ↑
27. Id. ↑
28. Elisabetta Mottese, Preventive Measures in the Council of Europe Convention on Offences relating to Cultural Property: An Overview, Santander Art and Culture Law Review 2/2018 (4): 121-142, 122 DOI: 10.4467/2450050XSNR.18.021.10375. ↑
29. Bieczynski, supra note 4, at 268. ↑
30. Bieczynski, supra note 4, at 269. ↑
31. Id. ↑
32. Id. ↑
33. Bieczynski, supra note 4, at 270. ↑
34. Id. ↑
35. Chanaki & Papathanassiou, supra note 2. ↑
36. Id. ↑
37. Council of Europe, supra note, at 6, no. 31. ↑
38. Mottese, supra note 18, at 122. ↑
39. Alessio Liberati, The Nicosia Convention: a criminal justice response to offenses relating to cultural property, The Journal of Cultural Heritage Crime (June 21, 2023), https://www.journalchc.com/2023/06/21/the-nicosia-convention-a-criminal-justice-response-to-offences-relating-to-cultural-property/. ↑
40. Id. ↑
41. Council of Europe, International Event on the fight against offences relating to cultural property (June 2024), https://www.coe.int/en/web/culture-and-heritage/conference-zaragoza-june-2024. ↑
42. Chanaki & Papathanassiou, supra note 2. ↑
43. Id. ↑
44. Liberati, supra note 27. ↑