Since its inception as a field of study and later as a discipline, archaeology has been immersed in, and conditioned by, the economic, political, and governmental institutions of nation states.
—Don D. Fowler1
At my job interview for the directorship of the Harvard University Art Museums in the summer of 1990, a panel member called me aside during a break and asked my position on acquiring antiquities illegally exported from other countries. Caught off guard, primarily because it was such a hurried and almost informal question, I gave an honest, and the obvious, answer: I would never approve of acquiring objects that were illegally exported from other countries.
That was pretty much the last I thought of the matter for a few years. Then in 1996, we organized an exhibition of large-scale Roman bronzes, some of which were loaned from private collections.2 The colleague who had queried me at my interview objected to our borrowing a work from a particular private collection and claimed that it had been purchased in contravention of international law. The work in question had been part of a controversy involving the British Museum and when I sought that museum director’s advice, he assured me that so far as the British government and British Museum were concerned, the controversy was resolved and he had no objection to our exhibiting—and publishing—the Roman bronze, which we did.
Then, in 1998, we mounted an exhibition of Greek vase fragments, which we had acquired three years earlier. The fragments comprised a collection that had been assembled by Robert Guy, former curator of ancient art at Princeton University and at the time a research fellow at Oxford University. When I first saw them, I was struck by their astonishing beauty and intimacy: they were of a size to be held easily and turned in raking light to reveal the thickness of the vase body and to show the different sheens of the black slip with which they were painted and the diluted composition lines that guided the painters. In short, they were like fragmentary drawings: mysterious and beautiful things in their own right, but also aids for further study into the making of antique vases and the stylistic markings of their makers. We agreed on a price and proceeded to purchase them for the museum. A year later, we mounted an exhibition and published a catalogue of them. Every fragment was described and reproduced. Their provenance, such as we knew it, was indicated. And the objects became the subject of study in seminars and other classes.3
Not everyone was happy, however. I began to hear that some people “in the field” were criticizing us for acquiring unprovenanced and “obviously looted” objects. I was taken aback. To be honest, I had not thought the matter through on those terms when I agreed to purchase them. They were as I have described them: beautiful in themselves, aids for teaching, and stimuli for further study. Still, very few had any provenance and those that had any had very little (vase fragments, by their small, fragmentary nature, have been exchanged frequently and informally for centuries). We discussed the matter with the dealer and collector and got more provenance, but only some; all that could be found. We sent copies of the catalogue off to relevant Italian authorities informing them of the whereabouts of the collection and asking them for any information that might make illegitimate our having acquired the fragments. We heard nothing in response.
In the meantime, I got a telephone call from a reporter at the Boston Globe, inquiring about the purchase of the vase fragments. He had been contacted by scholars elsewhere (he didn’t say who, how many, or where they were) who had expressed alarm at our acquiring them. I told him why we had acquired them and that they were better in our hands, in the public domain, and published for the world to know than in a private collection somewhere, whereabouts unknown. He was not convinced and seemed to take the side of the argument that we were aiding and abetting looters of archaeological sites by acquiring unprovenanced antiquities. Nothing I said moved him from this position, nor would he agree to talk with other scholars who might have a view different than the one his sources had.4
I was determined to learn more about the question of museums and the acquisition of antiquities. That I was late in doing so was obvious. I could still answer my colleague who asked me during the break in my job interview if I would ever acquire antiquities illegally exported from other countries: the answer was still “no.” But now the question was more complex. How much information and evidence would I have to have before I could answer that question? And what if I never got complete information, or no more than I originally had? Should I acquire the antiquities anyway? If so, would I necessarily be contributing to the looting of archaeological sites or the loss of another country’s cultural property? What is the relationship between antiquities and cultural property? Are all ancient objects allegedly found on or in a country’s soil valued cultural property of that modern country? What laws govern this and what is the position of the United States in this matter? Is it really a scientific question or a political one?
I discussed these questions with colleagues in the hallway, at conferences, and at professional meetings. I heard some things that astonished me. The colleague who had queried me during my job interview said that she’d rather an unprovenanced antiquity be destroyed than acquired by a museum. (The same colleague removed from display in our bookshop a copy of the Royal Academy, London, exhibition catalogue In Pursuit of the Absolute: Art of the Ancient World from the George Ortiz Collection, 1994, on “moral” grounds because she said it encouraged the looting of archaeological sites; I had to retrieve it from her office.) Other colleagues—university colleagues, only—said that antiquities had no meaning without knowledge of their findspots (where they were found; their archaeological context). Still others said that museums (and their directors) were pathologically addicted to collecting and were knowingly colluding with criminals, many of whom had ties with international organized crime and drug dealers. Nothing I said seemed to make a difference. The world was divided on this question: museums, private collectors, and art dealers were on one side and archaeologists, academics, and source nation cultural ministers were on the other. And the debates were heated.
I found myself speaking publicly on the matter, most often in law schools (they were the venues most interested in the question).5 But I found discussions about the law—strictly speaking, about the legality or illegality of acquiring unprovenanced antiquities—insufficient, and in the end even uninteresting. They were too narrowly focused; too technical. They didn’t ask why such laws were written in the first place, or what they represented about the ambitions of the nations whose laws they were. Laws are human creations. They express the social and political values of a people. And as their jurisdiction is politically determined, they represent the values of a nation. If there are laws against the acquisition of unprovenanced or undocumented antiquities, it is because politicians have judged them to be in the best interests of their citizens (or subjects).
I wanted to know what it meant that in 1983 the U.S. Congress passed (and the president signed into law) legislation enabling the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property; why was it in the best interests of the United States and its citizens to have done so; and why it took our government thirteen years to implement the Convention. Insofar as these questions were addressed in the conferences I attended and the papers I read, it was always assumed (taken for granted) that the interests of archaeologists— the preservation of the archaeological record—are in the best interests of everyone. But are they?
Laws change. One day the majority votes differently. Governments change. Nations get divided up and borders redrawn. What was valued yesterday is no longer valued today, or at least not valued in the same way and not by the same people. I am interested in the intellectual and political context of antiquity laws. i see the law as part of a larger, political narrative: laws governing the trade in and possession of antiquities are always part of a larger narrative about the formation of modern national political identities.
This chapter—indeed, this book—is an attempt to broaden the discussion of museums and antiquities beyond a narrow consideration of what is or is not technically legal. perforce, however, we begin with the law.
The first universal convention to deal solely with the protection of cultural property was held in 1954: the Hague convention for the protection of cultural property in the event of armed conflict. Born of the trauma of World War ii, its language and principles set forth an internationalist or cosmopolitan view of the value of cultural property: “Being convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind since each people makes its contribution to the world;/ considering that the preservation of the cultural heritage is of great importance for all peoples of the world and that it is important that this heritage should receive international protection;/Being of the opinion that such protection cannot be effective unless both national and international measures have been taken to organize it in time of peace.”6 although the United states signed on to the convention in 1954, it has never ratified it. in all, ninety-three states parties have signed and ratified or acceded to the First protocol of the convention, which entered into force on august 7, 1956. Forty-four states parties have signed and ratified or acceded to the second protocol, which was intended to strengthen the enforcement terms of the First protocol and entered into force on march 9, 2004.
In 1994, etienne clément of UNesco noted that among the five permanent members of the U.N. security council, only France and russia were parties to the convention.7 since then, china has signed on as a party to the convention. on march 13, 2009, the United states became the 123rd nation-state to ratify the convention.
When in times of interstate conflicts both nations are Parties to the Convention—India and Pakistan in 1971, Cyprus in 1974 (as both Greece and Turkey are States Parties), Iran and Iraq in 1980, Iraq and Kuwait in 1990, and Yugoslavia in 1991, the Director-General asks both Parties to comply to the terms of the Convention. Of course, nations can ignore these entreaties. In the end, nations make their own decisions with regard to protecting cultural property. The Second Protocol (2004), which was intended to strengthen the implementation of the Convention fifty years on, has not been signed on to or ratified by the major military powers in the world or by any of the Permanent Members of the U.N. Security Council. Archaeology and antiquities are often subject to the violence of international warfare and the maneuverings of domestic, sectarian politics. This should come as no surprise. It has always been so. No international convention—neither Hague 1954 nor any other—and no U.N. Security Council resolution can prevent this from happening.8
Nationalism and nationalist politics bedevil international initiatives. In 1970, UNESCO passed its Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Nationalist in perspective, UNESCO 1970 organizes the importance of cultural property (“one of the basic elements of civilization”) around its value to modern nation-states:
Considering that cultural property constitutes one of the basic elements of civilization and national culture, and that its true value can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting,/ Considering that it is incumbent upon every State to protect the cultural property existing within its territory against the dangers of theft, clandestine excavation, and illicit export,/Considering that, to avert these dangers, it is essential for every State to become increasingly active to the moral obligations to respect its own cultural heritage and that of all nations, . . . /Considering that the illicit import, export and transfer of ownership of cultural property is an obstacle to that understanding between nations which it is part of UNesco’s mission to promote by recommending to interested states, international conventions to this end,/considering that the protection of cultural heritage can be effective only if organized both nationally and internationally among states working in close co-operation.9
Perhaps this is inevitable. UNesco, like the United Nations itself, exists only as a cooperative venture between nations. Nations become members of international bodies like UNesco because they believe it is in their self-interest to do so. any conventions written by UNesco can only be entered into force if ratified by a sufficient number of national governments. National governments determine the fate of international conventions, both whether or not they come into force and whether or not they are adhered to. a nation can always ignore UNesco 1970, or choose officially to denounce it: article 23, 1–3, “each state party to this convention may denounce the convention on its own behalf or on behalf of any territory for which territorial relations it is responsible./the denunciation shall be notified by an instrument in writing, deposited with the Director-General of the United Nations education, scientific and cultural organization./the denunciation shall take effect twelve months after the receipt of the instrument of denunciation.” in the end, the principles of the convention cannot be enforced internationally. When nations ratify the convention, they implement it by passing legislation with national jurisdiction. to the extent that individual citizens or institutions contravene the terms of the national legislation, they can only be held accountable locally, not internationally.
The United states did not pass legislation enabling UNesco 1970 until 1983, when congress passed and the president signed the cultural property implementation act (cpia). France signed on to the convention only in 1997 and the United Kingdom in 2002; Germany and the Netherlands have yet to do so. (During the 1970s, 42 nations signed on the convention, with the highest concentration in the first years; to date 118 nations have signed.) What was the context for the United states’ consideration of the convention?
In 1969, a young art historian, clemency coggins, at the time a ph.D. candidate at Harvard, now a professor of archaeology and art history at Boston University specializing in the ancient cultures of Mesoamerica, wrote what she herself calls “a jeremiad directed at my own profession, which seemed to me implicated in the burgeoning traffic in plundered Pre-Columbian antiquities.” In an article in a professional journal, she traced the rise in ancient monuments stolen, mutilated, and illicitly exported from Guatemala and Mexico and declared that “not since the sixteenth century has Latin America been so ruthlessly plundered.”10 As a professional, she argued that the rights of individuals to own Pre-Columbian antiquities—which often meant, given the nature of removing and transporting them and the economics of the market, fragments of antiquities—did not outweigh the rights of humankind (or at least local peoples and interested scholars) to have them preserved intact and in place:
Unlike many natural resources, our archaeological resources are not renewable. Once a site has been worked over by looters in order to remove a few salable objects, the fragile fabric of its history is largely destroyed. Changes in soil color, the traces of ancient floors and fires, the imprint of vanished textiles and foodstuffs, the relation between one object and another, and the position of a skeleton—all of these sources of fugitive information are ignored and obliterated by archaeological looters. . . . The collector buys a beautiful object about which he knows virtually nothing, and no one ever mentions to him the devastation that was created in order to deliver it.11
Of particular importance was Coggins’s cataloguing of recent thefts of major monuments from Guatemala and Mexico (her concern was specific, not general) and its tracing of stolen and mutilated art into American museums, specifically the Cleveland Museum of Art, the Museum of Fine Arts, Houston, the Minneapolis Institute of Art, the Brooklyn Museum, and the St. Louis Art Museum, as well as to private dealers, collectors, and European museums. As the Harvard law scholar Paul Bator noted in 1982, “Dr. Coggins’s account of the ‘Maya crisis’ played an important role in giving credibility to the contention that the illegal traffic in art treasures is a problem that has to be taken seriously.”12 U.S. art museums could no longer claim to be unaware of the problem, even if they disagreed on how best to address it. The looting and pillaging of archaeological sites and the destruction of ancient monuments were now documented. And it was the subject of international conventions, agreements, and treaties.
At the same time, at the annual meeting of the College Art Association—the U.S. professional organization of scholars and teachers of art and art history—“eighty concerned Harvard faculty and graduate students” tried to get passed a resolution or a statement prohibiting the “increasingly destructive trade in antiquities.” This broadened the issues raised in Coggins’s article to a general concern about antiquities as such. But it was not immediately compelling. As Coggins reported on the meeting, “Relatively few people were even aware of the problem and when it was described many art historians doubted that it could be serious enough to warrant interfering with an art market which had operated in the United States, virtually without hindrance, or regulation for a century or more.”13
University museums were among the first museums in the United States to address the concerns raised by Coggins. This was for obvious reasons: university museums are part of a larger set of scholarly interests and programs, any one of which might be compromised, suspended, or terminated by a foreign national body because of the university museum’s alleged or actual inappropriate acquisition of an antiquity claimed by that nation as its cultural property. Among these scholarly interests or programs are archaeological excavations, teaching, training, and/or research programs, even student fellowships and faculty support. Any action by one part of the university that might affect the progress of another is subject to enhanced scrutiny and oversight.
The University of Pennsylvania Museum of Archaeology and Anthropology, renowned for its research on and collections of antiquities from the Near East and the Americas, formally adopted “The Pennsylvania Declaration” on April 1, 1970. It stated that the museum “would purchase no more art objects or antiquities for the Museum unless the objects are accompanied by a pedigree—that is, information about the different owners of the objects, place of origin, legality of export, and other data useful in each individual case.” Further, it obligated the Museum to make this information public. The Declaration acknowledged the increasing illicit trade in cultural objects, “particularly antiquities, which is causing major destruction of archaeological sites in many countries throughout the world,” and noted that UNESCO was discussing an international convention which would call for stricter import restrictions by the major importing countries, like the United States, United Kingdom, [West] Germany, and France (this would become UNESCO 1970). It then acknowledged that source countries would also have to impose stricter regulations on trade in antiquities within each country, for “the preservation of the cultural heritage for mankind as a whole is, in fact, a domestic problem for all nations.” It concluded by declaring that “The staff of The University Museum hope that their actions taken today will encourage other museums not only in the United States but in other nations to follow a similar procedure in the purchase of significant art objects, at least until the United Nations succeeds in establishing an effective convention to control this destructive trade.”14
The Pennsylvania Declaration was just that: a declaration. It was not a collections policy. It simply stated that the Museum director and curators needed to gather information useful in determining the pedigree of an antiquity before it could be acquired. Six years later, on May 2, 1978, the Museum adopted an Acquisitions Policy. This affirmed the principles of the earlier Declaration and those of the November 1970 UNESCO Convention, and resolutions passed earlier by the Archaeological Institute of America, the Society for American Archaeology, and the American Anthropological Association, 1973 Joint Professional Policy on Museum Acquisitions Resolution of the American Association of Museums, all of which were in support of UNESCO 1970. It then stated that its director and curators “will not knowingly acquire, by gift, bequest, exchange or purchase, any materials known or suspected to be illegally exported from their countries of origin; nor will they knowingly support this illegal trade by authenticating or expressing opinions concerning such material, and will actively discourage the collection of such material, exhibiting such material in The University Museum, or loaning University Museum objects to exhibitions of illegally acquired objects in other museums.” It further stated that “The University Museum reserves the right to refuse any loans to museums or museum departments that, in its opinion, knowingly violate the UNESCO Convention.”15
Over the next few years, claims against antiquities continued to make headlines. In 1972, the Metropolitan Museum of Art acquired the Greek vase commonly referred to as the Euphronios Krater. Almost immediately, public charges were made against the museum. The Italian government (on the presumption that it had been looted from an Italian tomb) investigated the matter but failed to produce convincing evidence; the krater would of course be the centerpiece of the 2006 agreement between the Metropolitan Museum and the Italian government resolving claims against the museum. In 1973, the California collector Norton Simon purchased a Hindu sculpture, the “Nataraja,” which resulted in a high-profile claim by the Indian government, which was settled out of court in 1976. Articles documenting these and other cases attracted attention in U.S. periodicals, most notably New Yorker magazine and the New York Times.16
At the same time, and at the request of the U.S. State Department, the American Society of International Law formed a Panel on the International Movement of National Art Treasures to study the political and legal problems around the international trade in art objects. Paul Bator served as reporter to and a member of that Panel. In April 1970, the Panel recommended that the United States adopt certain narrow restrictions on the import of illegally exported art and “prohibit the import of illegally exported Pre-Columbian monumental and architectural sculpture and murals.”17 The Panel also studied proposed drafts of UNESCO 1970, and a lawyers’ subcommittee of the Panel considered the Draft Convention and submitted a report to the U.S. Secretary of State in October. At the same time, and following Coggins’s earlier article and the Panel’s recommendation regarding Pre-Columbian antiquities, the United States signed a treaty with Mexico (July 1970). Two years later, Congress passed legislation prohibiting the import into the United States of monumental ancient sculptures and frescoes illegally exported from their country or countries of origin.
As Congress considered legislation implementing UNESCO 1970, legal action was taken against U.S. citizens charged with illegally trafficking in stolen antiquities. The first involved a California dealer in Pre-Columbian antiquities named Clive Hollinshead.18 In late 1971, a curator in the Brooklyn Museum wrote the Harvard Mayanist Ian Graham, seeking his opinion on a Pre-Columbian stela that had been offered by Hollinshead. Graham had in fact discovered and documented the stela in Guatemala ten years earlier. Suspecting that the stela had been illegally removed from Guatemala, Graham notified authorities, whose investigation uncovered an elaborate smuggling network. Hollinshead was arrested and convicted in 1973 of conspiracy to transport stolen property in interstate commerce and causing the transportation of stolen property in interstate commerce, both in violation of the National Stolen Property Act. A year later his conviction was affirmed by the Court of Appeals for the Ninth Circuit.19
In 1977, a U.S. art dealer named Patty McClain and her four coconspirators were convicted of conspiring “to transport and receiv[e] through interstate commerce certain Pre-Columbian artifacts . . . knowing these artifacts to have been stolen” on the basis that since 1897, “Mexican law has declared pre-Columbian artifacts . . . to be the property of the Republic of Mexico, except in instances where the Government has issued a license or permit to private persons to possess, transfer, or export the artifacts.”20 The defendants’ conviction was reversed on appeal because the court ruled that the trial court had erred in charging the jury that Mexico had become the owner of all Pre-Columbian artifacts in 1897: “The court’s review of the expert testimony led it to conclude that it was not until 1972 that Mexico unambiguously declared by statute that it was the owner of all pre-Columbian artifacts.”21 The defendants were retried and convicted for violations of the National Stolen Property Act and conspiracy to do the same. On appeal, conviction on the substantive count was reversed for reasons similar to the first appeal. But their conviction on the count of conspiracy was affirmed because of “massive” evidence that the defendants were engaged in continuing efforts to remove cultural property from Mexico; conspiracy in this case being obviously post-1972 activity. These high-profile cases raised public—and congressional— awareness of the problem of looting and illicit trafficking in cultural property, including antiquities.
The legal framework governing the trade in antiquities is basically export and ownership laws. These are meant to control the movement of cultural property, which one nation claims to be of great importance to its national identity and esteem. They are retentionist laws by intent, meant to retain a nation’s self-proclaimed cultural property for itself. Export and ownership laws have increased in number dramatically over the past sixty years, just as the number of nation-states has. As I noted above, the number of member nation-states in the United Nations has almost tripled over the last fifty years. Retentionist cultural property laws exist in a majority of these nations: either ownership laws, in which antiquities found in the ground within the modern borders of the modern state are declared state property; export laws, in which specific kinds of objects, even if privately owned, can not be exported from the modern nation-state without official permission; and hybrid laws, laws that combine state ownership rights and preemption rights by which the modern nation-state has a certain period of time within which to decide to buy the privately owned object or allow its export. Half of these date since 1947; and more than half of these date from 1970. Such is the trajectory of cultural property laws that more than half of the most severe date from only the last thirty years.
Sovereign nations have the authority to define their cultural patrimony as they wish, and even to claim ownership of that property. Of course, nations may do this for a variety of reasons, but they certainly do it for nationalistic reasons. The language of UNESCO 1970 is clear on this point: “Considering that cultural property constitutes one of the basic elements of civilization and national culture, and that its true value can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting.” And when Italy requested special import restrictions by the United States under the terms of the 1983 Cultural Property Implementation Act, it emphasized this point: “These materials [covered by the request] are of cultural significance because they derive from cultures that developed autonomously in the region of present day Italy that attained a high degree of political, technological, economic, and artistic achievement. . . . [T]he cultural patrimony represented by these materials is a source of identity and esteem for the modern Italian nation.”22
Bator criticized the broad use of a nation’s power to claim anything within its jurisdiction as its national cultural property: “the national patrimony should not be defined so as to suggest that it is desirable that a nation retain all of its art, or even all of its important art.”23 John Merryman was even more critical: “[s]keptics might conclude that this Convention [UNESCO 1970], in the name of cultural property internationalism, actually supports a strong form of cultural property nationalism. It imposes no discipline on a State’s definition of the cultural property that may not be exported without permission. It leaves States free to make their own self-interested decisions about whether or not to grant or deny export permission in specific cases. . . . In this way, the Convention condones and supports the widespread practice of over-retention or, less politely, hoarding of cultural property.”24
But what of U.S. law in this matter? How does it regard and enforce other nations’ ownership laws? Defendants—and certain legal scholars—have argued that blanket legislation “purporting to ‘vest’ ownership of a large class of antiquities in the state (without further steps taken to ‘manifest’ such ownership, whether by possession, specific designation, or otherwise) should not ‘trigger’ the application of the NSPA [National Stolen Property Act].” They argue that the word “stolen” should be interpreted “to cover only acts which result in the deprivation of rights of ‘ownership’ as that term is understood at common law.”25 This argument has been squarely rejected, however (as in the case against McClain, for example). Generally, the United States has sanctions which apply to the import or possession of stolen art; for example, the NSPA makes it a federal crime “to transport in foreign commerce goods known to be stolen, or to receive, conceal, or sell such goods.”26
The difficulty in enforcing these laws, however, is proving that an antiquity was stolen in the absence of any evidence regarding where it was found or from which particular jurisdiction it may have been removed. Italy may claim that all antiquities found within its borders are property of the state. But how is one to know that a Roman statue came from modern Italy rather than from anywhere else in what was once the Roman Empire, especially when all that may be known about the sculpture was that it was exported from Switzerland to the United States? (It may not even be possible to determine when it was imported into the United States.)
The absence of evidence is an indication that retentionist cultural property laws—export and ownership laws—are difficult to enforce. Congress recognized this and offered foreign governments the opportunity to request emergency import restrictions on categories of material typically covered by export and ownership laws. These requests are reviewed by the President’s Cultural Policy Advisory Committee, which then advises the State Department, which in consultation with the U.S. Treasury then advises the president, who decides on the matter. The review process was judged to be a fair process to weigh the implications such requests would have on U.S. interests. Congress wanted to be certain that U.S. interests in the international exchange of cultural property were maintained and that any restrictions on such trade were the result of multilateral and not unilateral action. The Senate Finance Committee report stated that U.S. import controls should be part of a concerted international effort, including the control of exports and imports, and noted that in previous years when considering various proposals for implementing legislation, a particularly difficult issue was how to formulate standards establishing that U.S. controls would not be administered unilaterally.27
Congress was concerned about legislating U.S. blanket enforcement of foreign ownership laws. It wanted to reconcile U.S. notions of property with those of foreign countries’ ownership laws. It also wanted to reconcile foreign export laws with U.S. import laws. As Bator wrote, blanket enforcement of the former “wholly removes from the hands of the importing country both the substantive decision as to what art objects should enter the country, and the institutional decision as to the scope of the enforcement regime it is practical and desirable for it to operate.”28 Prohibiting imports in this manner is a “blank check” rule, delivering up to foreign government the decision as to what if anything the United States can import. As it pertains to antiquities, such a policy would surrender to foreign governments the determination of what kinds of objects could enter the United States and be collected by private individuals and public institutions. Congress wanted this decision to be made locally, within U.S. jurisdiction, and not by foreign governments.
The United States finally implemented UNESCO 1970 in 1983. The enabling legislation—the Cultural Property Implementation Act—dealt with the question of local jurisdiction by instituting a review process, as mentioned above. Members of the Cultural Property Advisory Committee (CPAC), which undertakes the review, are appointed by the president for a term of three years. The process of nomination and appointment is a long and political one. Often positions on the Committee have gone unfulfilled for months, even years, compromising the intention of the law to have all interested U.S. parties participate in the review of foreign governments’ requests. In 2006, the two museum positions on the Committee were filled by a retired president and the current president of the same natural history museum (the Field Museum, Chicago) with active archaeological and anthropological field research projects in foreign countries. No art museums were represented on the Committee.29
When the Committee receives requests from foreign governments for import restrictions on whole categories of cultural property, it holds public hearings (only summaries of the requests are made public; the full requests in the original languages are not). The Committee then deliberates in private and makes a recommendation to the State Department, which then advises the president. As the recommendation resides in the State Department, it is considered within the context of U.S. foreign policy objectives. Maria Kouroupas, executive director of CPAC, has denied to me that foreign policy has ever influenced the recommendations of the Committee; she has not denied the same with regard to the State Department’s recommendation to the president. Until recently, the person in the State Department who ultimately reviews the recommendation and, in consultation with the U.S. Treasury, advises the president, was Karen Hughes, Under Secretary of State for Public Diplomacy and Public Affairs. (Hughes resigned her position in late 2007.) Hughes was appointed to her post by president George W. Bush in 2005. Her assignment, with the rank of ambassador, was to focus on ways to change perceptions about the United States abroad. Through the 1990s, she was President Bush’s director of communications when he was governor of Texas, and then served as counselor to the president when he moved to Washington. In 2002, she was a member of the White House Iraq Group and was a key advisor to the Republican National Convention in 2004 and to the late stages of the president’s successful reelection campaign later that year. It is impossible not to see the final determination of foreign government requests to CPAC as political: necessarily, they are part of U.S. foreign policy and must be considered together with other aspects of our nation’s relations with the requesting government and that government’s relations with other countries in which we have an important interest.30
CPAC bases its recommendations to the State Department to enter into or extend an agreement on four determinations: first, that the cultural patrimony of the requesting country is in jeopardy from pillage of archaeological or ethnological materials; second, that the requesting country has taken measures consistent with UNESCO 1970 for the protection of its cultural patrimony; third, that import controls by the United States with respect to designated objects, if applied in concert with similar restrictions implemented or to be implemented within a reasonable period of time by other market states, would be of substantial benefit in deterring such pillage; and fourth, that the establishment of such import controls in the particular circumstances is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.
These are very serious considerations. They are intended to allow for the international exchange of cultural property within very specific terms: when a requesting country’s cultural patrimony is not in jeopardy from pillage and when import restrictions are in keeping with the interests of the international exchange of cultural property. One can debate the application of these determinations in specific cases, and no doubt that is precisely what happens behind closed doors at CPAC meetings. But the public has no access to these debates. They occur in private and the resulting recommendations are private; indeed, even the original request is protected information since it is received from foreign governments through diplomatic channels. All the public gets to see is an English-language summary of the request and ultimately the president’s final decision. And CPAC members are prevented from revealing the content of their private in camera discussions by the terms of their appointment to the Committee. Some have argued that such policies are not in keeping with the intentions of Congress that informed the drafting of the 1983 legislation. Those intentions were for fair and open consideration of all requests to have the United States restrict trade in their cultural property. Otherwise, how would one know that the request met the four determinants as set forth in the law?
Take only two recent cases. In 2001, at the request of the government of Italy (and we assume on the recommendation of CPAC, although we can never know), the U.S. government imposed import restrictions on “certain archaeological material originating in Italy and representing the pre-Classical, Classical, and Imperial Roman periods of its cultural heritage, ranging in date from approximately the 9th century B.C. through approximately the 4th century A.D.”31 These materials included stone sculpture, metal sculpture, metal vessels, metal ornaments, weapons/armor, inscribed/decorated sheet metal, ceramic sculpture, glass architectural elements and sculpture, and wall paintings; that is, virtually every kind of object produced in or imported to the land we now call Italy over 1,200 years of recorded human history. It is hard to accept that all of these objects are worthy of restriction because they are important archaeologically or as cultural property. But this is what the memorandum essentially says. It states, for example, that “the value of cultural property, whether archaeological or ethnological in nature, is immeasurable . . . such items often constitute the very essence of a society and convey important information concerning a people’s origin, history, and traditional setting; these materials are of cultural significance because they derive from cultures that developed autonomously in the region of present day Italy . . . [and] the pillage of these materials from their context has prevented the fullest possible understanding of Italian cultural history by systematically destroying the archaeological record; and the cultural patrimony represented by these materials is a source of identity and esteem for the modern Italian nation.”
In other words, as the bilateral agreement would have it, the destruction of the archaeological record in modern-day Italy is problematic not because the world has lost vital information about humanity, about the way our human ancestors lived and ornamented their lives thousands of years ago, but because without it a full understanding of Italy’s cultural history is not possible and because the lost materials are a source of identity and esteem for the modern Italian nation. This line of reasoning runs counter to the intention of the U.S. 1983 legislation. It devalues the international exchange of archaeological artifacts and cultural property for the benefit of the world’s peoples, and privileges instead the retention of cultural property (of which it determines archaeological artifacts to be but a part) by modern nation-states for the benefit of local peoples. How then did the Italian request meet the terms of the four determinations set forth by the CPIA legislation? Is the cultural patrimony of Italy in jeopardy from pillage? There are reports of active looting of archaeological sites and of material resulting from accidental finds on Italian territory. But how does one determine that the patrimony of Italy is in jeopardy as a result? By any measure, the museums of Italy are filled with similar antiquities, most of which are neither published nor available on public view. Has the Italian government taken measures to protect its cultural patrimony? Yes, actively. Would the import controls taken by the United States deter pillaging in Italy? Not unless similar import restrictions were in place in other major market countries in Europe, Asia, and the Gulf States. Unless they were, the imposition of import controls by the United States could be considered a unilateral action and not a multilateral one as called for by the CPIA. And, finally, are import controls consistent with the general interest of the international community in the interchange of cultural property for cultural and educational purposes? Not unless Italy were to be more generous in lending to museums around the world antiquities from its museums’ storerooms. At the time of its request, 2001, Italy severely restricted the loan of antiquities, limiting the number and duration of such loans to a matter of a few months at a time. In 2006, it increased that period to four years in specific cases.
Why did the U.S. government grant the Italian request? For decades the Italian government had been making high-profile claims against U.S. museums, which it accused of acquiring illegally exported antiquities from Italy. Looting of antiquities in Italy was a matter of public record. Of course, there was real concern for the loss of archaeological context. But governments rarely, if ever, make decisions based on academic arguments about scholarly pursuits. There are always political trade-offs to consider, and to consider first. Throughout the Cold War, Italy was an important ally of the United States and a strategic partner in the West’s control of the Mediterranean. From U.S. military installations on Italian territory, U.S. warships and fighter planes could monitor Soviet ambitions in the Balkans and Western Asia, and of course northeastward through Yugoslavia into Hungary, and could counter Soviet influence on Socialist parties in Greece and the nonaligned countries in the Middle East, always with a watchful eye on the Suez Canal. As the Cold War gave way to the War on Terror, Italy remained an important and strategic ally, even a loyal partner in the Coalition forces attack on and occupation of Iraq: under the leadership of Prime Minister Silvio Berlusconi, Italy contributed the most forces to the Coalition after the United States and Britain. The U.S. government would have had to take Italy’s request for import restrictions seriously. There was just too much at stake. (This was as true in 2001 as it was in 2006, when the bilateral agreement was renewed for five years.)
The second case in point is the government of the People’s Republic of China’s 2005 request of the U.S. government for import restrictions on objects including but not limited to all metal, ceramic, stone, painting and calligraphy, textiles, lacquer, bone, ivory, and horn objects from the Paleolithic period to the Qing dynasty, or nearly 2 million years of human artistic production. Once again, it was hard to justify this request at face value. The 1983 U.S. statute requires that the requesting country demonstrate that all possible internal controls on their domestic market are being diligently applied and that the requested U.S. import embargo will have a material, positive effect on the stated emergency within the requesting country. There is a thriving Chinese domestic market for the materials cited in the request, which contradicts the stated benefits of restricting imports by the United States. The statute also holds that a U.S. embargo must be implemented as only a part of a multinational response including the active participation of all other countries with a significant market for the same cultural property. This is not satisfied simply by having signed UNESCO 1970, since, as we have seen, that Convention need not be applied and cannot be enforced. (As I write, only Italy has signed a bilateral agreement with China that approaches the terms of China’s request to the United States, hardly a ringing endorsement of multilateralism.) The statute also requires a qualitative standard of “cultural significance” when considering any kind of emergency, temporary restrictions such as import restrictions. No such standard was met by the request: it covered all materials over many thousands of years, without characterizing any of them as being of “cultural significance.”
The request will not work because, as I note later in chapter 4, there is a booming domestic Chinese trade in precisely the materials covered in the request. The Chinese request was really an attempt to help China retain its cultural property: what the modern nation-state of China claims is its cultural property, even materials whose cultural heritage may not even be Chinese but Tibetan or ethnic minority, or date from when “China” was much smaller than it is now (indeed, for much of the period covered by the request, China was of varying sizes, covering a range of Asian lands: what is China today was not China during much of the time covered by the request). This request is one part of a two-pronged strategy to build mainland China’s collections of what it purports to be its cultural property, having lost much of it to foreigners in the early years of the twentieth century and more again when the nationalist government transferred Taiwan during the Revolution. It is clearly an attempt to strengthen retention of what it has claimed to be its cultural property coincident with its rise as an economic, political, and military power in the world.
In the fall of 2006, the United States agreed to delay a decision on the request by the Chinese government.32 CPAC made its recommendation to the State Department and no doubt the State Department and U.S. Treasury considered the request in the context of other U.S. concerns about and interests in China. China is very important to the U.S. government. It is a rising and powerful economic power in the world (soon, with the United States, it will be the largest economic power in the world). U.S. corporations are hungry to compete with corporations around the world for a place in the Chinese market. The U.S. and Chinese economies are increasingly interwoven. As of 2006, China was the fourth leading export market for the United States (after Canada and Japan); if one includes Hong Kong, it was the third leading export market. And it is perhaps of even greater importance militarily. China has the largest standing army in the world. It borders North Korea, which is threatening to strengthen its nuclear arsenal. It has a restless Islamist population in the far west of the country, bordering on and near to unstable Islamist regimes, like Afghanistan and Pakistan, Uzbekistan and Kazakhstan. And yet China is stubborn and independent. It has its ambitions in Africa, as well as Asia. And there is a negative view of China generally among U.S. citizens and increasingly among U.S. lawmakers: most frequently cited concerns are China’s currency policy, intellectual property piracy, environmental pollution, product safety, and human rights. There is every reason for the U.S. government not to respond positively to the Chinese request—including that it would restrict U.S. citizens in ways it wouldn’t restrict the citizens of almost all other market nations (Italy is the exception). But will the United States eventually approve the request? Or some large part of it? The strategic nature of our foreign policy, not archaeology or the interests of U.S. museums, will determine the U.S. response to China’s request.
To date, the United States has agreed to every request for import restrictions reviewed by CPAC. These include requests from Bolivia, Cambodia, Canada, Colombia, El Salvador, Guatemala, Honduras, Italy, Mali, Nicaragua, and Peru. In addition, every request but one for an extension of an original request has been granted: these include El Salvador, Italy, Mali, and Peru: only Canada’s was not extended. Is it difficult to see a political pattern here? Any time the legitimacies of cultural property requests and strategic foreign policy advantages coincide, the United States approves the foreign government’s request.
So what is the value of UNESCO 1970? It set a standard for subsequent conventions and bilateral agreements, and set the bar—legal and moral—at a certain level within each State Party for the consideration of the issue of national responses to the problem of looted and illicitly exported antiquities. Within the United States, parties to the debate over the acquisition of unprovenanced antiquities can and do refer to UNESCO 1970 as if it were the determining standard governing the matter. But it is not and cannot be. It is only an international convention that can be ignored. We know from the actions of the current Bush administration that long-standing international agreements, like the Geneva Convention, can be ignored or partially adhered to in the presumed national interest of the U.S.
International conventions in themselves do not have the force of law. But they often provide the stimulus for subsequent legislative action in local, governmental jurisdictions. This is what happened with UNESCO 1970. It entered into force on April 24, 1972, was accepted or ratified by Ecuador and Bulgaria already in 1971, and then was accepted or ratified by seven nations in each 1972 and 1973, four in 1974, three each in 1975 and 1976, six each in 1977 and 1978, four in 1979, one in 1980, four in 1981, and three in 1983, the year in which the United States ratified it by passing the Cultural Property Implementation Act. Sixty-one nations have ratified it since, as of January 2007, for a current total of 111. As I’ve already noted, most of these nations have laws restricting the movement of antiquities across their borders (some predate 1970). But neither international conventions nor national legislations have stopped the looting of archaeological sites or the illegal trafficking in antiquities.