Home > Get The Facts

GET THE FACTS

What is cultural property?
What is the size of the market?
Who is affected by cultural property law?
Why shouldn’t all art go back to the countries it came from?
Do different nations define cultural property differently?
Is the cultural property of indigenous peoples treated differently than other cultural property?
Would legalizing the antiquities market in more countries prevent looting of archaeological sites and trafficking in looted artifacts?
How would a legal market work?
How could a documented, legal market help museums?
How would artworks and other objects be tracked in a legal market?
Could an antiquities database solve the looting problem?
Could looting be halted by giving locals an economic stake in preserving archaeological sites?
Could a “Portable Antiquities Scheme” like Britain’s work in other countries?
Are museums regulated differently than private collections? How?
What is the “1970 Rule”?
Do US museums accept post 1970 objects for donation?
What is the 1970 UNESCO Convention?
What issues exist with the 1970 UNESCO Convention?
What other international treaties specifically cover cultural property?
How do foreign laws affect cultural property in the US?
How are Mutual Legal Assistance Treaties, or MLATS used?
What US federal laws cover cultural property?
What is the effect of the 1983 Cultural Property Implementation Act?
What are the key definitions within the CPIA?
What is the Cultural Property Advisory Committee?
What is an MOU? Why are MOUs important?

 

What is cultural property?

Cultural property is a subset of ordinary ‘property.’ In many countries, certain materials have a special status under national laws or international treaties. Objects defined by law as “cultural property” may not be able to be legally privately owned, sold or exported without permission of the government. In an increasing number of nations, the government claims that the nation-state has ownership of all “cultural property.”

Different nations have different definitions. Cultural property may be movable property, such as a manuscript, sculpture or painting, but it can also be immovable property, such as a building or monument. Cultural property definitions may include rare animals, such as the dugong in Japan. Governments may also place limits on the use of intangible cultural property, as in folk knowledge about plants, or a traditional story or dance in Australia.

By far the most commonly used definition is found in Article 1 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property.

Under the UN convention, “cultural property” includes, but is not limited to: specimens of fauna, flora, minerals, anatomy, and paleontological objects, historical objects, including artifacts from the history of science and technology and military and social history, the lives of national leaders, thinkers, scientists and artists, archaeological items, antiquities more than one hundred years old, inscriptions, coins and engraved seals; objects of ethnological interest; handmade pictures, paintings and drawings; statuary art and sculpture; engravings, prints and lithographs, rare manuscripts and incunabula, old books, documents and publications of special interest, postage, revenue and similar stamps, singly or in collections, archives, including sound, photographic and cinematographic archives, articles of furniture more than one hundred years old, and old musical instruments.

[back to top]

What is the size of the market?

The market for ancient and ethnographic art is estimated to represent less than 1% of the total art market. The antiquities market (outside of China’s) is so small that art economic analysts do not bother to quantify it in market reports such as artnet, and antiquities are lumped together with antique furniture, silver and carpets in a sliver of art market pie charts.

The most succinct estimation of the size of the art market comes from Philippe de Montebello, who was Director of the Metropolitan Museum of Art for thirty years:

“It will also be important to debunk at the start the exaggerated and often fanciful claims that have been and continue to be made, such as the claims that the trade in unprovenanced antiquities amounts to some multi-billions of U.S. dollars. Every serious survey of the art market and museum acquisitions points to a figure closer to $100 million to $150 million a year for all antiquities, provenanced and unprovenanced, which is a fraction of those billions.” (Whose Culture? The promise of Museums and the Debate over Antiquities, Ed. James Cuno, Princeton and Oxford (2009), p. 64)

The $150 million figure for annual turnover is supported by the more judicious archaeological sources as well. This number appears to account for the entire legal market outside of China, in which objects have been circulating now among owners for hundreds of years. Any illegal market is only a small fraction of this lawful market. No evidence has ever been presented that it is larger.

Widespread reports of hundreds of millions and even billions of dollars’ worth of antiquities being sold by ISIS or its supporters that have proliferated in the media are similarly exaggerated. Again, there is simply no evidence for this. An important report commissioned by the Dutch National Police’s Central Investigation Unit, War Crimes Unit: “Cultural Property, War Crimes and Islamic State – Destruction, plunder and trafficking of cultural property and heritage by Islamic State in Syria and Iraq,” debunks the press’s statements: “These claims are largely not supported by available government reports. (International and National) Customs Authorities have not reported growing influxes of illegal cultural property over their borders. Law enforcement agencies have not reported growing arrests of criminal art dealers or seizures of illegal cultural property from Syria and Iraq. Policy papers and studies do not present evidence that the illegal (online) art market flourishes and is overwhelmed with Syrian or Iraqi artefacts.”

Although there are about a half dozen auction houses and perhaps a hundred significant galleries worldwide selling Mediterranean, pre-Columbian, and other antiquities, no art dealers in antiquities operate on a corporate level comparable to the contemporary art market. The highest volume, highest value art market in the world is in China and Hong Kong and deals in Chinese art, sold to buyers from China.

[back to top]

Who is affected by cultural property law?

The more extreme cultural property laws become, the more people and institutions are affected. Some religious communities are prohibited from moving religious artifacts and even community records across borders. Family heirlooms may have to be left behind when people move. Commerce in antique and ancient art is now severely restricted. By far the largest effect is on museums that contain artifacts from around the globe. Restrictions on museum acquisitions or access to collections harms the public, especially schools and young people who learn more about art and cultural history today in museum education programs than in the classroom.

[back to top]

Why shouldn’t all art go back to the countries it came from?

Some governments claim that artworks only have true meaning in one physical space. Because art-source countries often claim the right to all their art, it would mean that art-source countries would have only their own art and no examples of art from other countries. Americans would only have American art, Greeks only Greek, Italians only Italian, Egyptians only Egyptian. In an increasingly multi-cultural world, it is bad international and domestic policy to exclude other nations’ art and artifacts. In a dangerous world, it puts all the cultural eggs for each country in one basket.

Such policies threaten humanist and internationalist goals to preserve art for all humankind, and for the future. They would would damage museum efforts to bring uncensored access to art for research, study and to bring pleasure and common understanding to people of all cultural backgrounds.

[back to top]

Do different nations define cultural property differently?

While many developing or formerly colonized nations use an all-inclusive, ‘anything goes’ definition in their laws, other countries limit cultural property to archaeological items or very important objects of art. It is common for countries to utilize the UNESCO definition in their laws, but very few countries who adopt this broad standard actually uphold and enforce these laws inside each nation, for example, by prohibiting domestic sale or seizing privately-owned cultural property.

Developed nations generally enforce domestic laws, but at the same time, enable legal trade in almost all objects. Japan, which strongly enforces its own cultural property laws, also views the dissemination of its culture as positive international diplomacy: only about 14,000 objects in Japan are restricted from permanent export. About 1400 items, primarily from Imperial collections, may not leave Japan even for exhibition. All other objects may be sold or transferred internationally. The UK and the EU countries may require permission to export artworks of a very high value only.

US definitions vary. The US Cultural Property Implementation Act (CPIA) uses the UNESCO definition, but limits restricted objects to those types currently at risk of looting. The Native American Graves Protection and Repatriation Act (NAGPRA), Section 2 defines “cultural items” as human remains, funerary objects, and community-owned ceremonial objects.. The National Stolen Property Act (NSPA) applies to all property. It extends to cultural property simply because cultural property is a form of property, but does not define it.

[back to top]

Is the cultural property of indigenous peoples treated differently than other cultural property?

It depends which country the property is located in. The United States, Australia, and New Zealand are some of the few countries in which indigenous communities have legally recognized rights to the ownership of cultural property (including intellectual cultural property). However, the majority of nations with indigenous populations do not respect indigenous peoples’ interests in cultural property. Instead, they claim state ownership of all cultural property, including the cultural property of indigenous peoples.

[back to top]

Would legalizing the antiquities market in more countries prevent looting of archaeological sites and trafficking in looted artifacts?

Legal markets, guided by sensible rules and positive values, are often the fastest way to take illegal markets out of business. A regulated trade in ancient art would de-incentivize looting. Transparency in trade would earn exported objects repose in their new homes. Collectors would have good title to their collections. Art-source countries could track objects internationally. Worldwide, an inventory of art already in circulation would facilitate legitimate claims for return of stolen or regulated objects, and would allow free trade in other objects, curtail local corruption, eliminate profits from looting, and enable global academic access.

[back to top]

Documentation is key. If properly documented, any stolen object can be claimed, and no stolen object can be sold. In the past, documentation (or provenance) was not considered important. Papers were not required to legally import artworks or for museum acquisition. Most importantly, there was no documentation because art-source countries never set up systems to enable lawful trade. Many foreign nations made everything over 100 years old illegal to export, from postage stamps to ancient statues, and then ignored or unofficially facilitated the outward flow.

All that has changed. Many source nations now argue for universal restitution (even if it means that each country would have only its own art). U.S. museums cooperate in returns, although they are worried about core collections and how best to serve a multi-cultural population. Digital documentation of collections is now the rule, even though this sometimes provokes source-country claims.

The easy part is the technology. The hard part is building trust between foreign governments, museums and collectors. All should see the sense of a global permissions system, fair opportunities to reclaim heritage, and secure title. A legal, regulated trade in antiquities can serve our museums and the public.

[back to top]

Many museums adopted acquisition guidelines in 2008 that required a paper trail back to 1970 to acquire artworks, even as gifts. Lack of documentation has made hundreds of thousands of objects into ‘orphans,’ unable to be donated to public institutions. Both the ‘orphan’ problem and the fate of unprovenanced antiquities can be solved through digital databases and information sharing.

[back to top]

It is now feasible to catalog millions of objects, using a descriptive standard such as Object ID and a photograph. Insurance companies and art registries such as the Art Loss Register already have databases with hundreds of thousands of objects. (Museum databases now include many millions of digitally documented objects.)

Objects and their provenance could be inventoried on a universally accessible database. After a reasonable period to allow claims, title would be deemed free and clear, unless new information became available. The system could be fee-based, just like paying for title insurance for one’s home. If that fee helped to build museums, secure archaeological sites, or foster academic research, all the better.

[back to top]

Could an antiquities database solve the looting problem?

An antiquities database would help very much by creating a baseline of objects in circulation. William Pearlstein, in a 2014 White Paper sponsored by the Committee for Cultural Policy and published in the Cardozo Law School Arts and Entertainment Law Journal, proposed that a universally accessible database of objects should be created that would encourage transparency among market participants, motivate claimants to come forward, and restore legitimacy and value to non-1970 compliant objects. A digital database could provide a form of digital title that would travel with the object through its hopefully infinite lifespan. A database of both museum and privately-owned objects is certainly technologically feasible today, but Pearlstein suggested that passage into law would be the only way to ensure that conditions set for a timely claim would be binding on foreign and domestic governments and agencies.

[back to top]

Could looting be halted by giving locals an economic stake in preserving archaeological sites?

This is certainly possible, and has begun to be studied as part of the solution. In 2015, the Association of Art Museum Directors outlined a new collecting paradigm. The AAMD recognized that stopping looting required making local citizens in art-source countries into stakeholders and rewarding them for protecting art and cultural heritage. The AAMD also proposed a legal system of cultural property exchange that would be source-country government regulated, taxed, and the proceeds used to build museums, fund scientific exploration of archeological sites and provide related employment to local communities.

[back to top]

Could a “Portable Antiquities Scheme” like Britain’s work in other countries?

Britain’s Portable Antiquities Scheme is a government program managed by the British Museum. It is the world’s first country-wide proactive mechanism for recording archaeological finds, including accidental discoveries and finds by metal-detectorists. Every single find of an antiquity is digitally recorded and publicly available on the PAS online database, making it a valuable educational and research resource. Dozens of professional archaeological articles have been written based upon the materials in the database. PAS encourages reporting by giving the finders who report on discoveries an economic interest in whatever is found. PAS brings in professional archeologists to dig and record the finds. If a museum does not want to buy what has been found, the finder can later sell it on the market. PAS recently recorded its millionth find. The system works well, and could certainly be implemented in other countries.

[back to top]

Are museums regulated differently than private collections? How?

Everyone is subject to the same laws. So far, legal authorities have been very reluctant to prosecute or seize items from museums, whose collections contain hundreds of thousands of objects potentially subject to the same cultural property legal claims as art dealers or collectors’ inventories. In 2008, many museums chose to self-impose restrictions on acquisitions and donations, setting guidelines that required that an object have a permit from a source country, or else have an ownership history to before 1970. Because no countries granted such permits, and few owners have records going back almost 50 years, this results in museums being unable to show many important artworks, even those collected prior to 1970, and eliminates public access to types of objects that were rarely collected before 1970.

[back to top]

What is the “1970 Rule”?

The Association of Art Museum Directors (AAMD) imposed guidelines, starting in 2008 and strengthening them in 2013, that restricted member museums from acquiring or accepting donations or even loans of ancient art unless certain criteria are met. These same criteria have been adopted by many museums outside of the AAMD as well.

The 2013 AAMD guidelines on the Acquisition of Archaeological Material and Ancient Art (adopted by the membership of the AAMD, January 29, 2013) stated that while the museum community was strongly committed to a lawful global trade in art, and believed that the artistic achievements of all civilizations should be represented in art museums, it deplored the illicit and unscientific excavation of archaeological materials and ancient art and the destruction of ancient monuments. The AAMD committed itself to due diligence in the acquisition process, transparency in the policy applicable to acquisitions generally, and full and prompt disclosure following acquisition.

The AAMD chose the date of the UNESCO Convention, November 17, 1970, as providing the most pertinent threshold for the application of more rigorous standards to the acquisition of archaeological materials and ancient art as well as for the development of a unified set of expectations for museums, sellers and donors.

For museum acquisition or acceptance as a donation, artwork must have been lawfully exported – i.e. with a permit from the source country – or already outside the country of its probable modern discovery prior to 1970, to qualify to be accepted as a donation or purchased.

These guidelines have changed the rules for collectors who intended to make gifts or bequests to a museum but are now unable to gift them.  They have also created an estimated million-plus ‘orphan’ objects in US collections that – unless they are deemed to have met the discretionary criteria that museums can apply under the guidelines – cannot have the benefit of museum ownership, exhibition, publication or conservation.

The AAMD’s assumption (under Article I(E)) that a pre-1970 acquisition will be granted repose by a source country has unfortunately not been fulfilled: no art-source country has limited its claims against museums only to objects exported after 1970; some claims have been made for items that have been in museums for 100 years or more.

[back to top]

Do US museums accept post 1970 objects for donation?

The 1970 Rules are actually guidelines. If a museum reviews the information available on an artwork and determines that it is unlikely to have been recently looted or that it is reasonable to assume that an object has been in the US since 1970, then it may accession the object. However, most museums appear to view the guidelines as absolute, and very few museums are willing to risk criticism for acquiring an object, especially one that is not considered very important. This results in the inability to donate works that are not spectacular but that do merit a museum placement. It ensures that the hundreds of thousands of art ‘orphans’ will not find a museum ‘home’ in the US.

The AAMD Registry of New Acquisitions of Archaeological Material and Works of Ancient Art is a database where museums can post information on acquisitions of artworks and artifacts by AAMD member museums. This database gives notice of the whereabouts of the object to a broad class of potential claimants. In addition, many museums are in the process of putting their entire collections, along with each object’s ownership history, on globally accessible Internet sites. If cultural policies become more flexible, then museums may benefit by arguing that unless a claim is made within a reasonable number of years, they should have good title to the posted objects.

[back to top]

What is the 1970 UNESCO Convention?

Its full title is the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import and Export and Transfer of Ownership of Cultural Property was the first substantive international instrument specifically dealing with cultural property. 134 nations have signed the UNESCO Convention.

Signatories to the convention committed their nations to preventing the illicit import and export of cultural property from their territories. Among the steps to be taken were to create frameworks for the exchange of cultural property between nations, to educate their citizenry and to provide legal frameworks for enforcement of export policies. While the Convention extolled the benefits of international exchange of cultural property and recommended that State Parties establish permitting processes for export, it also envisioned cultural exchanges as between states or cultural institutions, not through the open market.

Signatories to the convention also obligated themselves to return cultural property taken unlawfully from other signatory nations. The convention provided for compensation to innocent owners and valid claimants to cultural property. Finally, signatories agreed to cooperate through mutual assistance in recovery of looted and stolen objects. Article 9 of the UNESCO Convention addresses particularly critical situations of looting. Under Article 9, State Parties to the UNESCO Convention agreed to participate in a concerted international effort to help deal with the pillage of a nation’s cultural patrimony through selective import controls and other steps by signatory nations.

[back to top]

What issues exist with the 1970 UNESCO Convention?

The UNESCO Convention was written during the heyday of the nonaligned nations. The nonaligned nations were developing countries, and many voted with the Soviet Union during the Cold War. Their ideologies were based on the struggle against colonialism: they were anti-capitalist and anti-market, and wary of any system in which powerful moneyed nations could dominate culturally as they did economically. The anger of former colonial nations over past exploitation of economic resources, including art, jibed well with the archeological perspective that every single shard should be retained because it was meaningful to archeological understanding. The UNESCO Convention adopted in 1970 favored nationalist art ownership and strongly disfavored the art market as a means of cultural property transfer.

The Convention did not propose that all art should belong within the national borders of the modern nations, but it gave source nations the ability to define what should be “protected” cultural property and what restraints to place on its transfer. Unfortunately, the Convention’s support for lawful exchanges of cultural property did not result in the creation of permitting systems. Most developing art source nations passed laws forbidding export of most or all cultural property or gave the government title to cultural property through national ownership laws.

[back to top]

What other international treaties specifically cover cultural property?

The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict sought to safeguard cultural property from the consequences of armed conflict, calling for nations not only to respect cultural property in their own nations, but that of other nation during armed conflicts and periods of occupation.

The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 1995)

establishes conditions for restitution and return of stolen or illegally exported cultural objects between State Parties. It places the burden of proving good title on a current owner, whether that is an individual or institution, and requires compensation to a claimant unless the current owner can show due diligence in its acquisition. The UNIDROIT Convention grants a very lengthy time period for claims, generally between 50-75 years when there is a “theft.” The range and types of objects that may be claimed is very broad, covering claims under state ownership and claims made by members of a tribal or indigenous community for objects of traditional or ritual use by that community. 41 nations have signed the 1995 UNIDROIT Convention.

A new international criminal treaty on cultural property was adopted by the Council of Europe (CoE) on May 4, 2017.  The 2017 Council of Europe Convention on Offences relating to Cultural Property opened for signature by any nation on May 19. Six nations: Cyprus, Armenia, Greece, Portugal, San Marino and Mexico, were the first to sign. The new Convention obliges its signatories to criminalize their domestic restrictions on import, export, trade, and even possession of ‘cultural property’ based on standards for theft and misappropriation set by art-source States. Acquisition and sale is criminal not only in circumstances where the person acquiring it knew the property had unlawful provenance, but also if the person acquiring it should have known if he or she had exercised due care and attention in acquiring it or marketing it.

[back to top]

How do foreign laws affect cultural property in the US?

Depending upon their terms, foreign laws can directly affect ownership of foreign cultural property in the US. Some foreign laws simply prohibit export of cultural property. The United States does not enforce such foreign export control laws.

Another form of foreign law is a national patrimony law that gives the state ownership of all cultural property, whether known or unknown, above or below ground. The 1979 McClain case set a precedent, although rarely used until after 2002, that after a foreign nation enacts a patrimony law, the removal of cultural property without the permission of that nation constitutes theft.  In a series of cases, US courts have held that the National Stolen Property Act applies to property that is stolen in violation of a foreign patrimony law. (United States v. McClain (5th Cir. 1979))

However, US courts have also held that it is not enough simply to have a national patrimony law on paper. Courts may find that an object is stolen when a defendant knows that the foreign nation has claimed ownership of the cultural property, when the foreign law clearly establishes and enforces state ownership, and when the object was removed from the specific foreign nation after passage of the national patrimony law.

[back to top]

Federal agencies are obliged to assist source countries through Mutual Legal Assistance Treaties. Source nations use these treaties to claim artworks from dealer stocks, auction house catalogs, and even individual estates. The most frequent use of an MLAT in a cultural property context is in making claims against an auction house. In this process, subpoenas are delivered a day or so before the auction, which results in removal of many objects from sale until after the auction is over, even though there is rarely a claim raised against the objects as a result.

[back to top]

What US federal laws cover cultural property?

There is no single US law affecting cultural property. The transfer of objects inside the US and across federal borders is covered by multiple, sometimes conflicting laws and court-made precedents. Because of these conflicting laws, what is legal under one law may be illegal under another. Most often, federal agencies have used civil forfeiture proceedings based on stolen property laws to seize art — without having to prove the elements required to obtain a criminal conviction. The effect is to pressure US museums and collectors to stop collecting, and to discourage, if not yet to eliminate the US market for antiquities.

The Cultural Property Implementation Act, Section 308, prohibits the import of cultural property actually stolen from a documented collection after the date on which the source country and the US have both signed the 1970 UNESCO Convention. Attempted importation of a covered object (a type of object listed as at-risk on a “designated list” associated with an agreement between the US and a foreign country) from any one of the 16 countries that has signed a Memorandum of Understanding with the US, also constitutes unlawful importation.

The National Stolen Property Act states that it is a criminal violation to knowingly possess, conceal, sell, or dispose of any goods of the value of $5,000 or more, which have crossed a State or US boundary after being “stolen.” In this case, an object sold by a private owner in a foreign country, but exported without permission of the foreign government may be considered “stolen” under the foreign government’s national ownership law. The allegedly stolen property in the US may be seized, and if deemed stolen, the object is forfeit to the US government.

Making a false statement on a Customs form is also a violation of US law, which will result in forfeiture of the imported objects. In the Steinhart case, US court held that identifying an antiquity as from Switzerland, not Italy, was a material misstatement on the customs form. (United States v. An Antique Platter of Gold, (2nd Cir. 1999).

[back to top]

What is the effect of the 1983 Cultural Property Implementation Act?

In the US, the 1970 UNESCO Convention is implemented through a domestic US law, the Cultural Property Implementation Act (CPIA), passed by Congress in 1983 after a decade of discussion and negotiation. The US legislation rejected the “blank check” approach of UNESCO and established a mechanism for review of foreign nations’ requests for US import restrictions and the enactment of agreements with foreign nations that balanced the need to deter looting with US museum, collector, and art dealer interests in the international circulation of cultural property.

The CPIA implements Article 9 of the UNESCO Convention concerning looted cultural property: importing cultural property listed in a Memorandum of Understanding between the US and another signatory of the UNESCO Convention constitutes unlawful importation and results in seizure and civil forfeiture of the cultural property. The CPIA’s Section 308 also implements UNESCO Article 7(b) to prohibit the import of cultural property that has been stolen from public institutions.

The CPIA was a compromise intended to balance the goal of preventing looting, with the US public interest in maintaining free trade. Congress created selective import controls, rather than an across-the-board import ban on illegally exported material. The CPIA set statutory guidelines for determining when the United States will restrict import of cultural property of “cultural significance.” It authorized seizure and forfeiture of designated, at-risk objects if they are imported into the US.

[back to top]

What are the key definitions within the CPIA?

Sections 303 and 304 of the CPIA define “archaeological or ethnological material” narrowly, to mean any object of archaeological interest first discovered within and subject to export controls by a signatory to the UNESCO Convention that is of cultural significance, is at least 250 years old, and discovered as a result of excavation or exploration on land or water.

“Ethnological material” means any object of ethnological interest first discovered within and subject to export controls by the State Party, that is the product of a tribal or non-industrial society and that is important to the cultural heritage of a people because of its distinctive characteristics, comparative rarity, or contribution to the knowledge of origins, development or history of that people. US import restrictions under the CPIA have often included colonial-period Catholic religious art as the “product of a tribal or non-industrial society.”

Many have argued that the implementation of the CPIA by the State Department has disregarded the requirement that objects be of cultural significance, imposing blanket embargos on nearly all cultural property coming from a particular State Party.

[back to top]

What is the Cultural Property Advisory Committee?

In the 1983 Convention on Cultural Property Implementation Act, Congress set up a panel of experts, the Cultural Property Advisory Committee (or CPAC), to review requests from art-source nations that are State Parties to UNESCO, and have requested US import restrictions under Article 9 of the UNESCO Convention.

By law, CPAC must consist of 11 experts appointed by the President: 2 members representing museum interests, 3 members expert in archaeology or ethnology, and 3 experts in the international sale of cultural property (understood to represent the interests of the art trade), and 3 members representing interests of the general public.

The Committee’s makeup was expected to balance the competing viewpoints regarding importation of cultural objects into the United States. But critics say that the operation of CPAC lacks transparency, that members of the art trade and collecting museums are underrepresented, and that archaeological and anti-trade interests are overrepresented and permanently fill a majority of the seats. (For example, the 2017 CPAC has filled an art dealer seat with a vocal opponent to the trade as a “trade specialist,” and there are four (some count five) archaeologists and anthropologists filling both archaeological and public seats. There is only one actual art dealer on CPAC.)

[back to top]

What is an MOU? Why are they important?

The CPAC can make recommendations to the President for selective import controls based on statutory guidelines already set forth. By establishing a procedure for requests, and setting criteria to be met before signing agreements for import restrictions, Congress chose not to follow UNESCO’s blank check regime which would result in an across-the-board bans on importing unlawfully exported material. The CPIA, Section 303, provides for Bilateral and Multilateral Agreements (MOUs) to restrict imports in certain types of objects from a requesting country seeking to protect its cultural heritage.

The CPAC must determine whether the request satisfies all four requirements set forth in the statute. The requirements are:

  1. The cultural patrimony of the State Party is in jeopardy from the pillage of archaeological or ethnological materials of the State Party.
  2. The State Party has taken measures to protect its cultural patrimony.
  3. The application of the requested import restriction if applied in concert with similar restrictions implemented, or to be implemented within a reasonable period of time, by nations with a significant import trade in the designated objects, would be of substantial benefit in deterring a serious situation of pillage, and other remedies are not available.
  4. The application of the import restrictions is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.

For almost 20 years, critics of the operation of CPAC by the Department of State (including a number of former members of CPAC) have argued that the MOUs entered into by the United States typically disregard the requirements of the law. According to critics, the “multinational response requirement” has not been met for any MOU and the US has acted alone among major market nations; the requesting countries have rarely taken significant measures to protect their cultural patrimony; the requesting countries have often failed to send traveling exhibitions to the US to make up for the loss of access by US collectors and museums, and the “designated lists” of items subject to import restrictions are far too broad, and include virtually all cultural property from a requesting country rather than types of objects currently subject to looting.

If recommended by CPAC and authorized by the President, a 5-year bilateral or multilateral agreement with the State Party that submitted the request is enacted. (There have been no multilateral agreements.) As every MOU established by the US (except with Canada) has been regularly renewed every five years, the result is to completely block all art from 16 nations into the US. Some nations’ art has been blocked from import for almost 30 years.Section 304 of the CPIA is an emergency provision that allows the United States to impose unilateral import restrictions for 5 years without the negotiation of an MOU. All emergency import restrictions have become virtually permanent MOUs.

[back to top]