Monday, March 8, 2010

MOU with El Salvador Extended

The State Department Bureau of Educational and Cultural Affairs ("ECA") has extended the US MOU with El Salvador. See http://edocket.access.gpo.gov/2010/2010-4783.htm and http://exchanges.state.gov/heritage/culprop/esfact.html

I attended the CPAC hearing to consider the renewal back in November. No speakers testified against the restrictions. Indeed, most MOU's are really not that controversial. Instead, the real controversy comes when restrictions impact artifacts long and extensively traded on international markets.

That is not to say the MOU does not raise any issues. Interestingly, in this particular case, I recall that an El Salvadorian archaeologist that testified in favor of the MOU also suggested that El Salvadorian artifacts should be made available to US based community groups. He explained that access to these artifacts would help El Salvadorian immigrants keep in touch with their own culture. I agree with him that this would be a good idea. I will be pleasantly surprised if his suggestion finds its way into the new MOU (which has not yet been posted).

In any event, the series of MOU's with El Salvador are notable for several other reasons. First, by the time this extension is again up for renewal in 2015, restrictions will have been in place for some twenty-eight (28) years. There is a strong argument to be made that the Convention on Cultural Property Implementation Act ("CPIA") did not contemplate restrictions being left in place for so long. Rather, the legislative history suggests that restrictions were only meant to be imposed for a limited period to give the requesting nation some time to "get its own house in order." Some might consider five (5) or even ten (10) years to be long enough.

Second, the series of MOU's with El Salvador demonstrates the principle of "culture creep." When restrictions were first imposed in 1987, they were limited to artifacts from a specific region that was in danger of pillage. As time went on, however, the scope of the restrictions have been extended to all of El Salvador. At least, the El Salvador restrictions have remained limited to Pre-Columbian artifacts. Restrictions in place for other Latin American countries have over time been extended to a host of Colonial period artifacts as well.

For example, it is debatable whether some of the items on the Bolivian "designated list" truly meet the threshold criteria for "ethnological" artifacts for coverage under the CPIA. Compare CPIA Section 302 (2) (B) (ii)http://exchanges.state.gov/heritage/culprop/laws/pdfs/97-446.pdf with http://exchanges.state.gov/heritage/culprop/blfact.html and http://eca.state.gov/icpp/bolivia/sect6.htm and http://eca.state.gov/icpp/bolivia/sect7.htm

Time will only tell if the current MOU with El Salvador will also be expanded in the future to Colonial era artifacts if it is extended again.

2 comments:

culturalpropertylaw said...

Regarding the argument that long-term restrictions are not within the contemplation of the CPIA, would you say that the more procedurally appropriate vehicle for protection would be traditional bilateral agreements? I'm not as on the up and up with this kind of procedure as I should be.

Cultural Property Observer said...

I think at some point import restrictions barring "undocumented artifacts" (and their shifting the burden of proof) should be ended. That does not mean that the US cannot continue to help the country in question develop their "cultural property infrastructure" or that US law enforcement cannot presecute clear cases of smuggling and/or looting.