ABA Panel on 1970 UNESCO Convention and CPIA

On April 15, 2010, the ABA Section of International Law hosted a panel discussion entitled, "International Trade in Ancient Art and Archaeological Objects: Controversies Over U.S. Implementation of the 1970 UNESCO Convention on Cultural Property."

Mark Feldman of Georgetown University Law Center and Garvey Schubert Barer acted as moderator and program chair. The panel included James Fitzpatrick (Arnold & Porter), Patty Gerstenblith (DePaul University), Josh Knerly (Hahn Loeser & Parks), and Nancy Wilkie (Carlton College).

Feldman previously served as the State Department's Deputy Legal Adviser. At State, he worked on both the 1970 UNESCO Convention as well as the US implementing legislation, the Convention on Cultural Property Implementation Act. Feldman provided the audience of ABA members with some historical background. He recounted that the U.S. Government first became interested in the issue when Mexican authorities asked for help in staunching looting of Mayan stela from jungle sites. At that time, US assistance was seen as a quid pro quo for Mexican help in returning stolen autos. US-Mexican negotiations led to a treaty to protect these artifacts. At the same time, source countries were negotiating the UNESCO Convention. The document contemplated that signatories would enforce each other's export controls on ancient artifacts. The US Delegation opposed giving source countries such a "blank check" because there was concern that broad declarations of national ownership would end the international interchange of cultural artifacts. Feldman indicated some felt the Convention and the implementing legislation went too far. Others, thought they did not go far enough. Feldman expressed pride, however, that the Convention now reflects international norms.

Jim Fitzpatrick discussed the CPIA. He represented the interests of the antiquities trade during the decade long debate about implementing the UNESCO Convention. Fitzpatrick stated that the CPIA sought to balance the interests of all the stakeholders, but that balance has been lost in recent years as reflected in the broad Chinese restrictions and the imposition of restrictions on Cypriot coins. In so doing, Fitzpatrick criticised State Department secrecy and the use of restrictions as a diplomatic bargaining chip. He further indicated that State has read the "concerted international response" requirement out of the statute. Under that provision, the State Department is required to find that the United States is acting in concert with other nations unless it can also find that there can be a substantial benefit in the United States acting alone to deter a serious situation of pillage.

Patty Gerstenblith argued that import restrictions under the CPIA were necessary to disincentivize looting. She noted the CPIA only applies to limited categories of cultural goods, i.e., archaeological and ethnological artifacts. She also indicated that given the accession of so many countries to UNESCO, the concerted international response requirement has been met. She also argued that the concerted international response requirement does not anticipate that other countries will apply restrictions in the same way the US does. Indeed, Switzerland is the only country that applies the UNESCO Convention in a similar manner as the US does.

Josh Knerly, counsel for the AAMD, expressed concern that as broad as import restrictions are, US law enforcement has gone even further to effectuate foreign patrimony laws. In particular, law enforcement has used civil forfeiture and criminal law to restrict the import of cultural artifacts not governed under the CPIA. He criticised the recent forfeiture of an Egyptian sarcophagus, which was based on an Egyptian law dating back to 1874. He expressed the concern that Customs has taken the position that it will enforce any cultural patrimony law whatsoever, even those dating back to the 19th century. He queried if Customs will apply Italian cultural patrimony laws dating back to 1939, what is the point of having import restrictions on Italian cultural goods that only relate to artifacts with no documentary history after 2001? He also criticised US law enforcement for using the Archaeological Resources Protection Act as a basis to seize foreign cultural property. He explained that a fair reading of the statute and its legislative history suggests that it is limited to artifacts taken from public and Indian lands.

Nancy Wilkie, a past AIA President and current CPAC member, explained how Clemency Coggins first brought attention to the looting problem back in the 1970's when she was challenged to demonstrate the seriousness of the issue to Latin American sites. Ms. Wilkie showed slides of looted sites in Peru and Cambodia. She indicated that eBay has been an outlet for looted artifacts in the past, but now is being used by indigenous populations to produce deceptive fakes. She also criticised sales of duplicates, arguing that they should be retained for future study. In closing, she indicated that ancient cultures are important to modern nation states. As an example, she showed a picture of the Cambodian flag and its depiction of Angkor Wat.

A question and answer period followed and then Mark Feldman summed up. In so doing, he confirmed that the "concerted international response" requirement was the focus of much debate before the CPIA was passed. He also indicated that State Department secrecy has even thwarted Congressional requests for information.

All the participants prepared papers that were included with the program materials. Hopefully, these papers will be made available to interested members of the general public in the future.