¹ The official text is published in French and English in the Final Act of the Diplomatic Conference for the Adoption of the Draft Unidroit Convention on the International Return of Stolen or Illegally Exported Cultural Objects (Rome, 24 June 1995). Note that the title of the Convention differs significantly from that of the diplomatic conference in that the words “the international return of” do not appear in the Convention's title. Cf. the English version of the Convention infra at p. 155.

² UNIDROIT 1990, Study LXX–Doc. 19, approved by the Unidroit Study Group at its third session on 26 January 1990 and reprinted in 1 International Journal of Cultural Property 252 ff. (1992). The writer was a member of the Study Group.

³ The final conference of National Experts met in Rome from September 29 to October 8, 1993. The Draft Convention is set out, with a detailed annotation by Dr. Marina Schneider of UNIDROIT, in 1993 Uniform Law Review 104 ff. (1995).

⁴ Neither a Preamble nor any equivalent of the Final Provisions in Chapter V of the Convention was included in the PDC. The Study Group was advised that these matters were best left to an eventual diplomatic conference.

⁵ See discussion of the Liotard case in ARTnewsletter, Sept. 7, 1993, p. 5.

⁶ Talleyrand-Périgord, Cons. d'Et., Ass., 12 Dec. 1969, Rec. Cons. d'Etat p. 574; J. C. P. 1972.11.17105, note A. H. Mesnard; Act. Jur. D. A. 1970.34, concl. J. Kahn.

⁷ Ministre de la Culture c. Consorts Genty, Cons. d'Et. 7 Oct. 1987, 1988 D. Jur. 268, note L. Laveissiere.

⁸ In Minisire de la Culture v. Consorts Genly, cit. supra, the court candidly stated that the fact that the Chinese jar was not French was irrelevant because the statute applied to objects “presentant un intérêt national d'histoire ou d'art” regardless of their origins or cultural identities. This appears to mean that a French national interest exists if the object is considered to be valuable or interesting, even if it has no French origin or cultural connection. France is of course not the only nation with such a policy. Italy has in the recent past refused export permission for paintings by Matisse and van Gogh and a group of water colors by Adolf Hitler.

⁹ The PDC contained a provision, deleted during the Diplomatic Conference, that indirectly addressed the meaning of such terms as “cultural heritage.” Article 6 provided that the forum of the State addressed might “refuse to order the return of [the] object when it finds that it has as close a, or a closer, connection with the culture of the State addressed or of a State other than the requesting State.” If Article 6 of the PDC had survived in the text of the Convention the concept of “relation to the culture of the State” might have helped a tribunal searching the text of the Convention for enlightenment concerning the meaning to be given Article 1 (b).

¹⁰ Readers familiar with the case of U. S. v. McClain, 593 F. 2d 658 (5th Cir. 1979) might suppose that it establishes the text proposition and that the Convention's language merely affirms what is already the law. McClain, however, was a criminal proceeding for conspiracy to violate the U. S. Stolen Property Act and is distinguishable on a number of grounds from the kind of proceeding contemplated by the Convention. For a brief discussion see Merryman & Nafziger, The Private International Law of Cultural Property in the United states, 42 Am. J. Comp. L. Supp. 221, 232–3 (1994).

¹¹ The McClain case discusses the Mexican law. For a case involving the Peruvian legislation see Government of Peru v. Johnson, 720 F. Supp. 810 (C. D. Cal. 1989).

¹² Article 3 (2) also threatens revival and extension of the device employed in U. S. v. McClain, cit. supra. A major issue in that extended litigation was whether pre-Columbian objects illegally exported from Mexico, whose law stated that such objects were national property, were “stolen” within the meaning of the U. S. law. The court in McClain, in a much-discussed opinion, so held. Although the case has never been overruled, it has had little subsequent application. Article 3 (2) would in effect incorporate the McClain principle into the Convention and extend it well beyond the McClain facts.

¹³ This objection, among others, is made in the Statement of Position of Concerned Members of the American Cultural Community Regarding the UNIDROIT Convention on the International Return of Stolen or Illegally Exported Cultural Objects (May 31. 1995). in para. II. B.3. The Statement is endorsed by the American Association of Museums and many major U. S. museums, as well as by collectors, dealers and auction houses.