In the XXI century, the traffic of goods has reached a high status in some metropolitan centers such as London, Paris or New York. The irregular acquisition of these cultural assets feeds the ego of collectors, but it mutilates the patrimony of nations and with it erodes their identity ”.
Sen. Héctor Vasconcelos, president of the Senate Foreign Relations committee.
On November 18, the plenary session of the Senate of the Republic approved the draft decree approving the adherence to the UNIDROIT Convention on Stolen and Illegally Exported Cultural Property, signed in Rome, in June 1995, which establishes norms accredited legal acts regarding the restitution and return of the cultural heritage of the contracting States of the same, until now 49, now including Mexico.
The subscription to the agreement is part of a series of coordinated public policies, especially between the Secretariats of Culture and Foreign Relations, as a reaction to the abundant cases of trade and speculation of pieces belonging to different cultures of the pre-Hispanic periods that inhabited the now Mexican territory.
On repeated occasions and through organizations such as UNESCO, the federal government has submitted requests, complaints and calls to different auction houses, including Christie’s, Sotheby’s and Millon, for clarification of the origin of the pieces that are submitted to bid and for reverse their illicit trade. But for the most part, the proceedings have been unsuccessful, which has opened the debate on the effectiveness of international mechanisms for the protection of cultural heritage.
Advantages of membership
In countries like France, where a large part of the transactions on patrimonial assets related to our country have been consummated, local law, according to paraphrase, dictates that whoever owns an asset is the legitimate owner or owner of it, since French law admits the “good faith” of the individual in the possession of an asset.
Much of these pieces were evidently stolen from archaeological sites in the country without the consent, cataloging or inventory of the specialists, so in almost all cases there was no way to intervene before authorities of nations such as France, since there was no way to prove that said goods were stolen or illegally exported.
During his speech prior to the unanimous approval of the opinion in plenary session, Senator Héctor Vasconcelos, president of the Foreign Relations Commission, highlighted the work that Mexico has been doing in the recovery of the atomized cultural heritage in the world, to a large extent, supported by the UNESCO Convention of 1970, which prohibits and prevents the import, export and transfer of illicit property of cultural property. However, he regretted, “practice has shown that this instrument is insufficient.”
On the other hand, he mentioned, the Unidroit route has legal characteristics that can cover the deficiencies of the UNESCO Convention, since it is self-executing, that is, it can operate even in the absence of local legislation on the matter of those countries that subscribe to it. .
What part of the agreement favors Mexico?
The Unidroit Agreement is made up of 21 articles and five chapters. The greatest strength of this instrument lies in the fact that it empowers States that require the restitution of a patrimony to act based on their own laws and not subject to the legislation of the country in which one or more pieces have been located.
The opinion approved in the Senate explains that “the burden of proof corresponds to the possessor and not to the requesting State.” The foregoing indicates that it is not the government of the country where a piece is located that has to demand from the requesting State proof of the provenance of a good, but rather that the requested country has to verify how the piece got into the hands of the person. has.
Now, since the Federal Law on Monuments and Archaeological, Artistic and Historical Zones in its article 27 specifies that “movable and immovable archaeological monuments are property of the Nation, inalienable and imprescriptible”, it is not possible to prove the legal acquisition of any archaeological property extracted from Mexican territory.
The property is imprescriptible
The head of the National Institute of Anthropology and History (INAH), Diego Prieto Hernández, has recognized that many of the archaeological pieces of Mexico that have appeared in the catalogs of auction houses could have been extracted from the country in the first half of the 20th century. or before 1972, the year in which the Federal Law on Monuments and Archaeological, Artistic and Historical Zones was approved, and much of it was in the possession of private collectors for decades.
However, in its article 10, the Unidroit Convention specifies that many of its provisions should be applicable only after the entry into force of the document for each country. In response, the Senate formulates a series of interpretative declarations when adhering to the Convention, one of them reads: “the request for the restitution of a stolen cultural property that is an integral part of an identified monument or archaeological site or that belongs to the culture Mexicana, is imprescriptible in accordance with Mexican law ”.
What is Unidroit?
The International Institute for the Unification of Private Law (Unidroit, by its acronym in French) is an independent and intergovernmental organization based in Rome, Italy, whose purpose is the harmonization of private international law, so that uniform legal instruments can be developed or agreements in different matters, one of them, “cultural property”. It currently has 63 member states, including France, Italy, China, Russia, the United States and Mexico.