Mark B. Feldman: Reform of U.S. Cultural Property Policy

Commentary by Mark B. Feldman Esq.[1]

Symposium: Reform of U.S. Cultural Property Policy: Accountability, Transparency, and Legal Certainty

Benjamin N. Cardozo School of Law, New York, N.Y.  April 10, 2014

Thank you for inviting me to provide background for this Panel on the 1970 UNESCO Cultural Property Convention[2] and the 1983 implementing legislation (the “CCPIA”).[3]  I initiated those U.S. efforts to reduce looting of archeological sites through international controls on trade in plundered art and am pleased to discuss the aims and limits of  U.S. policy in that period.   First, though, let me congratulate Bill Pearlstein on the comprehensive White Paper he prepared for the Committee for Cultural Policy addressing the current state of affairs.  While I do not share all the views put forth there, he is certainly correct that there have been dramatic changes in U.S. law and practice that have established a very different policy balance than the one the State Department negotiated in the UNESCO Convention and that Congress approved in the implementing legislation. The very fact that the White Paper argues for a return to the policies adopted back then shows just how much things have changed.  Forty years ago, antiquities dealers strongly opposed the State Department program of the day.

State Department Initiative: 1969[4]

It may help to recall where we stood in 1969.  At that time, there were no international rules regarding trade in looted cultural property, except for situations of international armed conflict, and the U.S. rejected international appeals for such controls on the ground that American law did not enforce foreign penal statutes.  The evidence was building, however, that pillage of archeological sites threatened irreplaceable cultural resources, including well documented Mayan monuments in Mexico and Central America.  I first focused on the issue when Mexico presented a diplomatic note to the State Department requesting U.S. assistance to recover cultural property illegally exported from Mexico.  The note expressly linked this demand to Mexico’s on-going help in recovering stolen American automobiles.

In short order, I learned that pillage of archeological sites in the Americas had reached crisis proportions,  that American archeologists were up in arms over the situation, and that major museum associations were moving forward on new codes of ethics regarding acquisition of antiquities of dubious provenance.  Given the importance of the American art market, I became convinced that the United States Government needed to respond.  My colleagues in the State Department readily agreed to support targeted measures to control trade in archeological objects, and other agencies were supportive.  Nothing could have been accomplished, however, without cooperation of the domestic stakeholders.  Not surprisingly, many in the art world worried that curtailing trade in ancient art would damage important public interests derived from collecting and exhibiting foreign art.  Antiquities dealers were particularly concerned that the State Department might agree to limit art imports as a bargaining chip to obtain concessions from other governments on matters unrelated to cultural property issues.

Fortunately, conditions were ripe for action.  Thanks to the archeologists and supportive media, the issue was receiving considerable public attention, and other stakeholders were prepared to negotiate.  To facilitate these discussions, the State Department asked the American Society of International Law to host a panel of archeologists, museum representatives, dealers and academics chaired by the distinguished attorney, William D. Rogers.  Professor Paul Bator served as reporter and contributed much to the deliberations.

Compromises had to be made, but we were able to forge a consensus that enabled the State Department to initiate a three part program to control imports of ancient works of art looted from archeological sites and illegally exported from countries of origin: (1) a treaty with Mexico for the recovery and return of  pre-Columbian and colonial objects of “outstanding importance to the national patrimony” as well as important historical documents; (2) a statute prohibiting imports of pre-Columbian monumental and architectural sculpture exported illegally from Latin America; and (3) UNESCO negotiations for a multilateral treaty seeking to diminish pillage of archeological sites.

The first two items were surprisingly non-controversial at the time and relatively easy to implement.  I negotiated the Mexican Treaty in 1970,[5] and Congress passed the pre-Columbian legislation that I drafted with Congressional staff in 1972.[6]  The UNESCO Convention was a different story, however.  The draft prepared by the UNESCO Secretariat, based on comments from the interested governments, proposed a comprehensive ban on international trade in virtually all cultural property unless the object was accompanied by an export license from the country claiming patrimony.  Given the reluctance of many countries to approve export of even routine and plentiful cultural artifacts, such a “blank check” regime would have severely restricted international trade in nearly all cultural objects of artistic, historical and educational interest.  Panelists were also concerned that other art-importing states would not cooperate, and that unilateral U.S. import controls would merely divert art objects to other markets.

Ultimately, most stakeholders agreed that carefully focused import controls were necessary to dampen market incentives for pillage of archeological sites and endorsed an international convention for that purpose provided it had no retroactive effect on existing American collections. The panel rejected the “blank-check” approach that would have implemented foreign export controls designed to keep art at home in favor of targeted import controls intended to discourage looting that threatened to destroy the record of human civilization while preserving imports of ancient art to promote study of ancient civilizations.

Based on this consensus, the State Department prepared an alternative Convention text that would have committed the Parties: (1) to return cultural property stolen from museums, shrines and monuments, (2) to require public institutions, and to encourage private museums, not to acquire important cultural property illegally-removed from another State Party, and (3) to “take appropriate measures,” including mutually agreed import controls, to remedy situations where a state’s cultural heritage is jeopardized by the removal of important cultural property.  These points, with some modification, make up the core of the UNESCO Convention as adopted.

UNESCO Negotiations: 1970

The Convention was drafted by a Special Committee of Governmental Experts meeting in Paris in April, 1970.  Some forty six states participated, but important market states, including the United Kingdom and Switzerland, did not. The United States prepared an alternative treaty text, but we were not permitted to table it as such.  Instead, the U.S. had to propose amendments to the Secretariat draft article by article. Many votes were extremely close. We won some and lost others in no particular pattern.  As Professor Bator explains in his brilliant “Essay on the International Trade in Art,”[7] the drafting process was chaotic, and the final text “is not a model of clarity and consistency.”

In the end, working with Mexico and others who understood that the Convention could not succeed without U.S. support, we were able to persuade the Committee to adopt a text that met essential U.S. negotiating objectives. (A detailed negotiating history and analysis are set out in the U.S. Delegation Report submitted to the Secretary of State, July 27, 1970.)[8]   The Senate gave advice and consent to ratification of the Convention on August 11, 1972, but implementing legislation (the “CCPIA”) was not enacted until January 12, 1983.[9]  The Convention finally entered into force for the United States on December 2, 1983.[10]

One of the most controversial parts of the draft legislation submitted by the  State Department authorized the Executive to conclude either bilateral or multilateral agreements with States Party to the UNESCO Convention calling for  import controls when the President determines that (1) import controls “with respect to designated objects or classes of objects would be of substantial benefit in deterring … pillage,” and (2) the controls would be consistent with “the general interest of the international community in the interchange of cultural property among nations for  scientific, cultural and educational purposes.”  State proposed that a panel of experts representing the interested constituencies be appointed to advise the Executive.

Critics argued that this provision for bilateral agreements did not require a “concerted international effort” as contemplated by article 9 of the Convention and opened the door for unilateral import controls that would be ineffective in deterring pillage and damaging to American interests.  The critics were correct that the Convention does not provide for bilateral agreements as such.  I proposed the bilateral option, because I was concerned that other art-importing countries would be slow to accept the Convention and that the United States would come under undue pressure in multi-lateral negotiations organized by UNESCO among mostly art-exporting states.

Further, as I testified for the State Department, the United States has an important national interest and a moral obligation to work against the destruction of the cultural heritage of mankind.[11]   At the time, I expected the State Department to limit import controls to objects attracting serious threats to archeological resources and to insist on conditions preserving a reasonable flow of ancient art to the United States.

Ultimately, a grand bargain was achieved in Congress that imposed significant procedural and substantive constraints on Executive authority to negotiate import controls with other countries, including the participation of other market states in concert with the U.S.[12]  At the same time, Congress authorized the Executive to establish temporary import controls unilaterally in three critical situations: where an “emergency condition” threatened either newly discovered archeological or ethnological material or particular sites of high cultural significance, or to counter a threat of “crisis proportions” to the record of a “particular culture or civilization.”  To my mind, this authority was the most important part of the bill. Even if no bilateral agreements could be implemented because other art-importing countries would not join a “concerted international effort,” the U.S. would be able to respond to the most critical situations.

In recent years, the State Department has implemented the program vigorously believing strongly in its mission to help protect the cultural heritage of mankind and responding to the demands of foreign states.  This is commendable provided the Department complies with its statutory mandate.  The Executive is not authorized to establish import controls without international cooperation unless an emergency condition exists as defined by law, and Congress did not intend to authorize comprehensive import controls on all archeological objects exported from a country of origin without its permission.  The purpose of the program is not to keep art at home, but to help protect archeological resources from pillage; the findings required by the CCPIA were established for that purpose.

It is not clear how the State Department makes the findings required by law as it has never explained its interpretation of the statute or disclosed the bases for those findings.  I am concerned about the lack of transparency in the decision-making process and reports of administrative manipulation of the Cultural Property Advisory Committee (CPAC).  If Bill Pearlstein is correct  that State has never filed CPAC reports with Congress, as required by law, that failing should be corrected by Congress.

The White Paper

National Stolen Property Act

The UNESCO Convention was the principal turning point in U.S. policy concerning international trade in cultural property.  As noted in the White Paper, however, the Convention has been superseded in large part by other measures, particularly criminal prosecutions under the National Stolen Property Act[13] and customs seizures that classify imports of cultural property, including archeological material, as stolen property if the foreign state concerned has enacted legislation asserting state ownership of all such property within its territory.[14]

I have to agree that general application of this principle would have the effect potentially of giving every foreign state the “blank check” to trigger U.S. import controls that was rejected by the U.S. government in 1970 and 1983.  It is one thing for a court to apply foreign property law in a civil action in cases where that choice of law is consistent with U.S. public policy; it is quite another to cede to foreign governments the power to engage U.S. criminal and customs law unilaterally without taking into account U.S. interests in legitimate trade in cultural property as contemplated by Congress in the CCPIA.

Admittedly, 1970 is a long time ago. The world has moved on since then, and public policy has evolved both in the United States and abroad.  There is every reason to believe that public opinion today would support more vigorous international measures to protect the common heritage of mankind from looting and other predatory measures than it did 40 years ago.  Still, these are significant issues of public concern that should be debated openly and decided in an orderly way, not ad hoc by individual officials or bureaucratic stealth.  I do not have much hope that the current Congress would address these issues, but the best way of inviting such a debate might be a carefully drafted bill that takes account of all U.S. cultural interests.

The 1970 Rule

The next panel will discuss the guidelines established by the American Association of Art Museum Directors in June 2008 recommending that museums “normally should not acquire a work unless provenance research substantiates” that the work was removed from “the probable country of modern discovery” before 1970 or was legally exported from that country after 1970.  I hesitate to step into this minefield, but given the importance of the issue and its place in today’s discussion, I must make one point.  Whatever the merits of the 1970 rule as applied, the principle is consistent with the U.S. policy I helped coordinate with the private sector in 1970.  The draft Convention that the U.S. delegation brought to Paris after intensive consultation with American stakeholders included a provision requiring States Parties to take the necessary measures to prevent institutions under their control from acquiring important cultural property illegally-removed from another State Party to the Convention.   The U.S. draft also would have required all States Party to “make every effort to obtain … support” for this principle from other institutions whose acquisition policies are not under state control.

To advance this proposal, my formal statement to the UNESCO drafting committee, as Chairman of the U.S. delegation, cited steps then being taken by the American Association of Museums, ICOM and others to develop guidelines for museum acquisitions.  As I recall, the AAMD had reservations on this point in 1970, but my statement reflected U.S. policy when I said:

“There can be no more important response to the problem that brings us together this week than such voluntary action on the part of the museum community.”[15]

The emphasis was on the word “voluntary,” of course, as there was overwhelming support in UNESCO for acquisition rules binding on all museums, and the federal government was in no position to enforce any such rule on private institutions.

Article 7(a) of the Convention, which embodies this principle, originally was drafted to be mandatory for all institutions, but the U.S. delegation took pains to add qualifying language that protected the U.S. position and made a record at Paris that the change was intended to avoid a regulatory obligation that the U.S. could not accept.  Later, this interpretation was incorporated in a formal Understanding proposed by the State Department and included in the Senate Resolution giving advice and consent to U.S. ratification of the Convention.[16]  At the same time, President Nixon’s Message transmitting the Convention to the Senate noted: “It is expected that private institutions would develop their own code of ethics consistent with the spirit of this provision.”

This process took much longer than the framers expected in 1970, and some institutions have paid a price for that delay.  Nonetheless, if there really are a million objects already in the hands of private collectors in this country that may be appropriate for exhibition in public institutions, study and publication, that is a problem deserving attention.  The CCP proposal for a statute-backed electronic data base of such “orphaned” objects is a creative suggestion that warrants consideration and further elaboration.  As always, however, the devil is in the details.

MBF