Anna Kędziorek is a Policy Officer in the Cultural Policy Unit of the Directorate General for Education and Culture (European Commission). Much of Anna’s work concentrates on developing policy and actions to fight against illicit trade in cultural goods, raising awareness on the issue, and cooperating with relevant stakeholders and international organizations. Other topics of Anna’s competence include gender equality in the cultural and creative sectors, the role of culture for social cohesion, and the EU competition law. She holds a Master’s Degree in European Studies (Adam Mickiewicz University, Poland), and Master’s Degrees in Law (Aix-Marseille III University, France; Adam Mickiewicz University, Poland; College of Europe, Bruges, Belgium).

Andrzej Jakubowski serves as SAACLR Deputy Editor-in-chief and Leader of the project “Legal Forms of Cultural Heritage Governance in Europe – A Comparative Law Perspective”, No. UMO-2019/35/B/ HS5/02084, financed by the National Science Centre (Poland). This interview was undertaken within the framework of this research project

Erika Bochereau is Secretary General of the International Federation of Art and Antique Dealer Associations (CINOA).
Established in 1935, CINOA is the principal international confederation of Art & Antique art market professional associations. Affiliated dealers from 30 leading associations cover a wide array of specialties, from antiquities to contemporary art. CINOA’s associate members include leading associations of auction houses and the International League of Antiquarian Booksellers (ILAB), which alone represents an additional 22 book seller associations. CINOA, and all of its member organizations, have a strict application process to ensure acceptance of only peer-vetted art professionals that have established businesses, reputable galleries, and/or practices. CINOA-affiliated groups abide by a high standard of business practices and codes of ethics which include strict due diligence. During the past nearly 70 years, dealers have been changing their practices to abide by biodiversity, cultural property, and heritage legislation. The CINOA Code of Conduct is updated regularly to reflect these changes. The vast majority of CINOA’s members are businesses of four people or less who work hard to cultivate their clientele: http://www.cinoa.org. UNESCO uses the term partnership for very specific relationships. I don’t think we can keep this sentence.

Alicja Jagielska-Burduk is Editor-in-chief of the “Santander Art and Culture Law Review” (SAACLR) and the holder of the UNESCO Chair in Cultural Property Law at the University of Opole.

Andrzej Jakubowski serves as SAACLR Deputy Editor-in-chief and Leader of the project “Legal Forms of Cultural Heritage Governance in Europe – A Comparative Law Perspective”, No. UMO-2019/35/B/ HS5/02084, financed by the National Science Centre (Poland). The present interview was undertaken within the framework of this research project.

This article argues that Regulation (EU) 2019/880 and its implementation will need to be reviewed in order to reach its goals. Regulation (EU) 2019/880 seeks to protect cultural heritage and prevent money laundering and terrorism financing by regulating the import of cultural goods into one of the largest art markets in the world. The Regulation however suffers from several shortcomings with respect to various issues. The article analyses four of these issues, starting with the process of creation of Regulation (EU) 2019/880 and the main critique of it being based on (too) little evidence. Moreover, attention is paid to the necessary practicalities of the European-wide implementation of Regulation (EU) 2019/880, the complexity caused by the use of the 1970 UNESCO Convention definitions to define cultural goods, as well as the practical ramifications of the use of the concept “country of creation or discovery”. Drawing on these findings the article questions whether this Regulation in its current form is likely to have its intended effects.

This article examines legal provisions and remedies for illicitly trafficked pre-Columbian antiquities, focusing on Mexico and the United States of America (USA), to determine gaps and areas for improvement. These two countries provide an interesting contrast, as they are contiguous neighbours but have different legal systems and approaches to the protection of cultural property. Nonetheless, Mexico and the USA have a history of fruitful cooperation in the recovery and return of pre-Columbian cultural objects under both domestic and international frameworks, such as bilateral agreements and cultural heritage conventions. In particular, as a country that accounts for nearly half of all global art market transactions, the USA is uniquely placed to act as a gatekeeper for pre-Columbian antiquities and serve as an example for the effective protection of foreign cultural property seized within its borders. However, while the examination of Mexico and the USA provides a useful case study, the illicit traffic of these objects should not be viewed in isolation or characterized as solely a regional problem. Globalization and the international nature of the art market require a more expansive view of the subject, while still taking countries’ legal and cultural specificities into account. A balanced and holistic approach will help increase the effectiveness of both national and international remedies; this will improve the legitimate market as a whole and curb illicit trafficking. By tackling the problem at both ends of the supply chain and increasing visibility, the possibilities of success shall rise.

The protection of cultural heritage from illicit trade is today a global imperative, and the return of unlawfully removed cultural goods is essential to enforce cultural rights. Indeed, every community has the right to enjoy its cultural heritage and keep alive its collective memory. While referring to these general objectives of contemporary international cultural heritage law and policy, this article seeks to explore those instruments of the Brazilian national legislation that could be effectively applied to combat the illicit trafficking of cultural goods. To this end, it first outlines the relationship between Brazil’s international law obligations and its national legislation in respect of cultural heritage. In other words, it explains how these obligations have been implemented in the national legal system and to what extent they have affected actual regulatory solutions. Next this article identifies and debates, through hermeneutic analysis, those legal provisions and instruments of the Brazilian law which could be used to prevent the illicit transfer of cultural goods. It also recalls the Banco Santos case, which provides a clear example of the shortcomings and pitfalls of the current legal system for the protection of cultural heritage in Brazil. Finally, this article advocates mediation as an alternative method of cultural heritage-related dispute settlement, particularly regarding cases of illicit trade.

Taking up the appeal of lenders around the world, this article shows that there is an opportunity to internationally and uniformly regulate art-financing. The research contributes to the debate by presenting recent evolutions of the art-financing industry from both the financial and legal perspectives. The article provides an overview of the art-secured lending market, focusing firstly on financial issues that hinder the practice and the proposed solutions to them; and secondly on legal issues. Despite the financial difficulties faced by service providers, including determining the estimated return of a work of art after two years from the issuance of the loan, scholars and market players have successfully teamed up to solve some urgent financial issues. Departing from recent literature that analyses art-financing exclusively from a financial standpoint, this paper also considers art-financing from a legal perspective, presenting two case studies and two different legal systems. The jurisprudence of both U.S. and selected European courts on point is employed to highlight the advantages and drawbacks of art-secured lending. Finally, the article advocates the creation of an international register of collateralized art goods to encourage international secured transactions involving art works.

Over the last twenty years, a number of high-level policy meetings have emphasized the significance of cultural diversity in all matters related to international cultural cooperation. Instruments negotiated both in the context of the UNESCO and other agencies of the United Nations demonstrate the pervasive interest of the international community in strategies enhancing cultural diversity. Yet the concept of diversity is a particularly broad one, entrenched on a variety of rationales for its protection, such as the promotion of human rights and democratic participation; sustainable and human development; protection of cultural industries vis-à-vis the liberalisation of audio-visual services and free trade; promotion of intercultural and interreligious dialogue; as well as protection of cultural rights and cultural heritage. As this article submits, the promotion of cultural diversity is a laudable cause in and of itself, and a first step towards achieving equality. Its omnipresence, however, taken in conjunction with its imprecise content and function in the cultural market (in accordance with the 2005 UNESCO Convention on the Promotion of Cultural Expressions) runs the risk of downplaying its significance and effectiveness.

In recent years, the social dimension of cultural heritage has gained significance in international law. A better understanding of the human rights dimensions of cultural heritage has resulted in substantial recognition of the right to heritage; a right that has not been explicitly regulated in international law. This article aims to analyse the path that cultural heritage law has taken to adopt a human rights law dimension. It also discusses the construction of the right to heritage and maps the connections and disconnections between and within cultural heritage law and international human rights law frameworks. The article uses the example of Indigenous peoples as a referent, due to the special bond that many may have to cultural values which play a significant role in the formation of Indigenous identity. In this context, I argue for a human rights approach to cultural heritage, which offers not only participation but also the co-creation of heritage together with local and Indigenous communities.

The 1970 UNESCO Convention is the key international instrument to protect movable cultural heritage. States Parties to this treaty undertake to adopt measures to prohibit and prevent the illicit trade in such objects, as well as those designed to stop the import of unlawfully exported cultural goods. The EU, as an important UNESCO partner and a powerful regional organization, has been urged since the 2000s by many international actors as well as its own institutions to curb the illicit transfer of cultural goods within its boundaries, especially in the light of the influx of cultural material illicitly removed from conflict-ridden territories. Regulation (EU) 2019/880 on the introduction and the import of cultural goods may be seen as providing a long-awaited legal framework that would promote and strengthen the operation of 1970 UNESCO Convention, both in Europe and globally. Thus, there is a significant interplay between the UNESCO and the EU cultural goods import regimes, which this note endeavours to analyse.

Regulation (EU) 2019/880 of the European Parliament and of the Council assigned implementing powers to the European Commission to adopt uniform provisions for effectively enforcing new rules on the import of cultural goods. The present commentary navigates the text of the Commission Implementing Regulation (EU) 2021/1079 of 24 June 2021 (“Implementing Regulation”), adopted to ensure the uniform implementation of the said import legislation by the Member States. The text of the Committee’s instrument sets up exemptions from the documentation requirements for certain categories of goods; contains detailed provisions on import licenses and statements; and establishes rules for the electronic system for the import of cultural goods. The ambitious provisions of the Implementing Regulation raise some important questions, e.g. whether the electronic system will facilitate the work of custom agents or engulf it; or whether national export offices and legislative bodies will step up to the challenge and quickly adapt to the new system and new rules.

This Note considers the Conclusions on EU Approach to Cultural Heritage in Conflicts and Crises, which were adopted by the Council of the European Union on 21 June 2021. It starts by analysing the shift in the way cultural heritage has been perceived since the introduction of cultural heritage within the EU’s external relations’ strategy. It then considers how the role of cultural heritage as a vector of peace and development could be strengthened and consolidated through a better articulation of its linkages with climate change.

In recent decades, there have been many offences against world cultural heritage by terrorist entities aimed not only at damaging the historical past and cultural identity of specific nations, but also at financing their activities through the sale of cultural objects. The European Union (EU) countries have often been the recipients of such cultural goods from conflict-ridden territories. For this reason, the EU has gradually adopted a set of legal measures aimed at reducing the flow of illegal cultural goods from third countries into its territory. Focusing on the North-Eastern Mediterranean boundaries of the EU for geopolitical reasons, this article examines the EU’s legal measures regarding the import of cultural goods from third countries from the perspective of Greece in order to investigate whether the new regulatory measures could be effective in this particular Member State. On one hand this article examines EU Regulation No. 1210/2003, Regulation No. 1332/2013, and Regulation No. 2019/880; and on the other it analyses Article 33 of the Greek Law 3028/2002 regarding the import of cultural goods. As regards the latter, this approach includes not only the law itself but also cases generated under it, its legislative history where applicable, and commentaries and literature on the law that will enable the measurement of the effectiveness of the new measures in Greece. Comparisons are also made herein, albeit to a lesser extent and mainly between the EU import rules and the relevant national rules, as the effects of EU law upon Greek law are yet to be identified.

Digitization is an important process taking place within contemporary legal systems, leaving its fingerprints on different branches of law and forcing changes to traditional industries while not sparing the system of cultural heritage protection. Cultural institutions are nowadays facing the challenge of combining mass digitization with public access to works which are part of their collections. At the same time they are struggling with the applicable copyright law. The new EU Directive on Copyright in the Digital Single Market addresses those needs, introducing a system of extended licencing granted by Collective Management Organizations (CMO) and facilitating an easier access to works which, due to their unresolved copyright status, were not ready to be publicly displayed. This article addresses the problem of striking a balance between the private and public interests involved in this process by analysing the opt-out procedure to the new licencing scheme, and confronting it with the traditional protection granted to authors based on moral rights. It seeks to answer the question whether the new opt-out system is sufficient to protect an author’s interests arising from his or her moral rights, and whether such interests would also be sufficiently safeguarded after an author’s death (post mortem auctoris).