Regulatory framework and resources

The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property is the first international framework aimed at combating the illicit trade in cultural objects.

The Convention establishes that it is unlawful to acquire or import objects that have been exported in violation of the laws of the country of origin. It also contains provisions intended to facilitate the return of stolen or illegally exported cultural objects to their countries of origin. Sweden ratified the Convention in 2003. As the Convention is not retroactive, it does not apply to objects exported to or from Sweden before 2003.

Although the Convention is not retroactive, 1970 has been used as a reference year when assessing the provenance of an object, particularly for archaeological and prehistoric items. In recent years, however, practices have changed and several international organisations, such as UNESCO and ICOM, now recommend using the legislation of the country of origin to determine whether an object has been exported illegally. In many cases, the relevant laws entered into force long before 1970.

UNESCO has developed a database of national cultural legislation in all Member States, making it easy to examine how the laws on export and trade are structured in different countries.

The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects regulates two main areas: the return of stolen cultural objects, and the return of illegally exported cultural objects. Sweden acceded to the Convention in 2011, and its provisions were incorporated into Chapters 7 and 8 of the Swedish Historic Environment Act. Today, the Convention has been ratified by over 50 countries.

The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (in swedish, regeringen.se)

Swedish Historic Environment Act (in swedish, riksdagen.se) 

Article 3 states that the party in possession of a stolen cultural object must return it. This also applies to objects that have been illegally excavated or illegally retained after an excavation. The Convention complements the 1970 UNESCO Convention by enabling international restitution through judicial proceedings. States Parties may bring an action for restitution in the country in which the object is located.

A key principle of the Convention is the requirement of due diligence, or sufficient care, for acquirers to be able to claim compensation for a returned object that was stolen or illegally exported:

The Convention also gives States the right to request the return of illegally exported cultural objects through a court or other competent authority in another State Party.

The EU’s single market, with free movement of goods, limits the possibility of border controls. The rationale behind the introduction of the Return Directive (eur-lex.europa.se), therefore, was to protect cultural objects classified in Member States as ‘national treasures’ against unlawful export.

This Directive states that cultural objects exported illegally from a state within the European Economic Area (EEA) and found in any other Member State must be returned. For Sweden, the Directive was incorporated into national law through new provisions in Chapter 6 of the Swedish Historic Environment Act. The rules apply to actions for restitution in Swedish courts concerning objects that are found in Sweden after being unlawfully removed from another state. The Swedish National Heritage Board is the central cultural heritage authority in Sweden and may bring actions for restitution in other EU countries.

The Return Directive contains common criteria for interpretation of the due diligence requirement regarding the acquirer’s right to compensation for objects that are to be returned. It is up to the possessor to demonstrate that the due diligence requirements have been fulfilled in order to receive compensation for their returned acquisition.

The EU Import Regulation aims to prevent cultural objects that have been illegally exported from countries outside the EU from being brought into the Union. This Regulation prohibits the import of cultural objects that have been exported in violation of the laws of the country of origin. Violation may give rise to suspicion of smuggling.

The Regulation also governs how cultural objects may be imported legally. Importers must be able to prove, through the EU’s electronic import system (the ICG system), that the object was exported from its country of origin in accordance with national legislation. This can be done by providing export licences, proof of ownership, sales contracts or other supporting documents. Due diligence is a key element in the import process and requires importers to actively verify and document the object’s provenance and legal status.

Museums are also covered by the Regulation and must register all imports from third countries – both temporary loans and permanent acquisitions – in the system. The import system also provides an overview of the relevant legislation of third countries, which is intended to facilitate the assessment of an object’s legal status.

Many museums in Sweden are affiliated to ICOM, the International Council of Museums. ICOM issues a Code of Ethics that constitutes a minimum standard for the museum profession. The guidelines require museums to carry out due diligence measures to ensure that objects offered have not been obtained illegally or exported illegally:

The ICOM Code of Ethics provides an exception to this principle. This is what is referred to in paragraph 2.11 as “the museum as a repository of last resort”. This states that the Code of Ethics should not prevent a museum from acting as an authorised repository for protection of unprovenanced, illicitly collected or recovered specimens or objects from the territory over which the museum has lawful responsibility.

Since 2000, ICOM has been compiling what are known as Red Lists of cultural objects at risk. These lists, which take the form of illustrated brochures, contain lists of the categories of cultural objects most at risk of illegal trade from particularly affected countries. These lists make it easier to identify objects at risk and reduce the risk of them being illegally traded or exported.

The Washington Principles and the Terezin Declaration are international guidelines that aim to guide the work of identifying, investigating and returning art and cultural objects confiscated or looted by the Nazis and their collaborators. Their aim is to achieve reasonable and fair solutions for victims and their heirs. Sweden has signed both documents.

According to the Washington Principles, which were adopted in 1998, looted art is to be identified and publicly disclosed to allow claims for restitution to be made by the original owners or their heirs. If heirs can be identified, prompt action must be taken to reach a fair solution. States are encouraged to find fair solutions in other forms, even when heirs cannot be traced.

The Terezin Declaration, which was adopted in 2009, reinforces the Washington Principles and calls on both public and private actors to apply them. The Declaration expands the definition of Nazi-confiscated art to also include objects that were sold under duress, abandoned or confiscated through coercion and intimidation. It also emphasises the importance of continued provenance research and making the results accessible. States are encouraged to develop effective systems for handling return requests within a reasonable time and taking into account all relevant documentation.