The war on antiquities: United States law and foreign cultural property.

• Author: Vitale, Katherine D.

INTRODUCTION

On the morning of January 24, 2008, federal agents raided four California museums, (1) combing through their galleries, offices, storerooms, and computers in search of evidence that museum officials had knowingly acquired looted antiquities and archaeological materials. (2) According to warrants issued in the investigation, Robert Olson, an antiquities dealer living in California, allegedly led a smuggling ring that, over the course of many years, had succeeded in transporting thousands of ancient artifacts from Thailand, China, Myanmar, and Native American archaeological sites to art dealers in the United States. (3) Mr. Olson conspired with Jonathan Markell, a respected art gallery owner, to sell some of these looted antiquities to an undercover National Park Service agent posing as a collector. The undercover agent then donated the pieces to museums in exchange for inflated tax write-offs. (4) Museum officials, who had varying degrees of knowledge about the antiquities' provenance, agreed to the donations. (5)

As the culmination of a five-year undercover investigation, the raids sent shockwaves through the museum community. (6) Prior to the raids, newsworthy scandals involving high-profile collections of stolen art tended to be the result of complaints brought by foreign governments. (7) The 2008 California museum raids are therefore important not only because they mark the first major U.S.-led crackdown on museums for alleged looting, but also because they establish what may be a new level of criminal liability for museum officials under the National Stolen Property Act (8) (NSPA) and Archaeological Resources Protection Act (9) (ARPA), statutes that hold accountable those who deal in stolen property.

The use of these statutes to target art dealers and museum officials makes some observers wary, and they warn that it could lead to an increase in the black market trade of art and antiquities. (10) To others, however, the raids are a welcome change in U.S. policy. (11) These observers argue that museums that acquire looted cultural property are like any other crime network, and that the loot should be treated like contraband drugs or endangered species. (12) If in fact these raids indicate that the United States is now treating museum officials who acquire looted art and antiquities like drug traffickers, it is clear that the United States is not alone in its new approach. In October 2008, London's Metropolitan Police began cracking down on the illicit trade in Afghan antiquities, ominously cautioning that "'[i]f [the art] industry fails to heed ... warnings about the purchasing of these items, then ... officers will move on to consider specific intelligence led operations to enforce the law.'" (13) These operations, no doubt, will look something like the 2008 California museums investigation.

The use of NSPA and ARPA to prosecute individuals who buy, sell, or otherwise deal in cultural property stolen or illegally exported from a foreign state is in direct tension with the Convention on Cultural Property Implementation Act (14) (CPIA). CPIA is a statute enacted in accordance with an international treaty to which the United States is a party. (15) This Note explores how criminal liability under U.S. law for museum officials and others who acquire art, archaeological materials, and especially antiquities (16) originating in foreign nations conflicts with CPIA's treatment of foreign cultural property. Part I discusses the principle of protection of cultural property in international law and the manifestation of this principle in the United Nations Educational, Scientific and Cultural Organization's 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (17) (1970 UNESCO Convention). Part II examines the 1970 UNESCO Convention's influence on U.S. civil law and policy regarding foreign cultural property, and on the acquisitions policies of inter national and domestic museums. Part III discusses criminal penalties under both NSPA and ARPA for those who knowingly acquire stolen foreign cultural property. Part IV analyzes the conflict between policies on foreign cultural property followed by the United States and domestic museums and the application of criminal penalties in art trafficking cases. In addition, this Part explores the consequences of the conflict for both the United States and individuals, and suggests resolutions to the conflict through law. Finally, this Note concludes that in order for the United States to fulfill its obligation under the 1970 UNESCO Convention, it must stop conducting a war on antiquities--and those who acquire them.

1. INTERNATIONAL MECHANISMS FOR PROTECTING CULTURAL PROPERTY

   Both international law and U.S. domestic law aim to protect the world's cultural heritage by protecting individual states' cultural property. The United States recognizes the importance of cultural property and has pledged to protect it by cooperating with other states. (18) How the United States protects cultural property is shaped and governed by general principles of international law and a multinational treaty, the 1970 UNESCO Convention.

   1. The General Principle of Protection in International Law

      Cultural property manifests a state's cultural heritage and is a significant source of national pride and identity. Moveable cultural objects, such as antiquities and archaeological materials, are repositories of historical, social, and ethnographical information. Those who steal or damage cultural objects destroy more than the objects themselves--they destroy part of the culture. Moreover, destruction of cultural property belonging to any nation or people damages the cultural heritage of all mankind. (19) It is understandable then that the protection of cultural property is an old and important part of international law. (20)

      There are two key instruments that embody this international protection principle: the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (21) (1954 Hague Convention) and the 1970 UNESCO Convention. The 1954 Hague Convention deals explicitly with protection of cultural property during wartime. It prohibits the destruction or seizure of cultural property during armed conflict, whether international or civil, and the trafficking of such property seized during an armed conflict. (22) The 1954 Hague Convention manifests at least two propositions about cultural property: that it is important to the whole world, not just its country of origin; and that cultural property's importance in the world justifies its protection above all else. (23) As a complement to the 1954 Hague Convention, the 1970 UNESCO Convention was developed for the protection of cultural property primarily during peace-time. (24) It obliges member states to protect the cultural property of other member states through national legislation and international cooperation. Because of the relevance of the 1970 UNESCO Convention to U.S. law, it is more fully analyzed in the next subpart.

   2. The 1970 UNESCO Convention

      In November 1970, the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted the 1970 UNESCO Convention, a non-self-executing treaty (25) whose purpose was to establish a comprehensive international mechanism to prohibit the illicit import, export, and transfer of its states parties' cultural property. (26) The 1970 UNESCO Convention was a product of the post-World World II growth in the illicit trade of cultural property; (27) this trade, according to the UNESCO General Conference, had led to the "impoverishment of ... cultural heritage," both in individual states and globally. (28) In part, the illicit trade in cultural property stemmed from the unequal power dynamic between market countries, where demand for art and antiquities tacitly encouraged worldwide export of cultural and archaeological objects, and source countries, which are rich in such objects but economically poor relative to market countries. (29)

      The 1970 UNESCO Convention seeks to remedy this unequal dynamic mainly through the use of export and import restrictions. (30) While source countries restricted export of their cultural property prior to 1970, (31) the 1970 UNESCO Convention extends international effectiveness to national export prohibitions by obliging its member states "to prevent museums and similar institutions within their territories from acquiring cultural property ... illegally exported" from another member state, and "to recover and return any such cultural property." (32) Cultural property as defined by the 1970 UNESCO Convention includes anything from rare specimens of minerals, to original works of statuary art, to postage stamps, and more. (33) Each state party must "specifically designate[]" such property "as being of importance for archaeology, prehistory, history, literature, art or science," for it to receive protection. (34) The precise designation of cultural property subject to export restrictions gives fair notice to importers and others about the legality of imported art, archaeological materials, and antiquities. (35)

      The 1970 UNESCO Convention obligates states to employ export and import restrictions on cultural property through the use of export certificates. (36) In particular, states parties to the Convention must prohibit exportation and importation of items of cultural property that are unaccompanied by export certificates. (37) States parties must also prohibit the import of documented items of cultural property stolen from another state party's museum or similar institution after the date the Convention entered into force, and take appropriate steps to recover and return any such item. (38) In addition to employing import and export controls, states parties must also ensure the protection of their cultural property against illicit import...