Matthew Polk [1]
- Summary: The Cultural Property Policy Environment
- Museums, Their Collections Policies and Their Public Mission
- Museums’ Ability To Serve The Public At Risk?
- A Brief History of Cultural Property Regulation
- Trends in Cultural Property Regulation and Enforcement
- Notes: Cultural Property Legislation References and Comments
Summary: The Cultural Property Policy Environment
The first draft of this summary was prepared in late 2015 for the Collections Committee of a local museum. We wanted our committee members, staff and trustees to be better informed about US and international cultural property laws, treaties and enforcement trends, how the cultural property environment is evolving and the impact these may have on the museum’s public mission. We also wanted to provoke an internal discussion regarding how the museum should operate in this environment and the role museums should play in shaping future cultural property policy.
Since that first draft the ongoing debate over how best to protect the World’s cultural heritage has taken an unfortunate turn with far reaching consequences for museums and their public missions. Genuine concern for cultural heritage preservation has been replaced with politically driven calls to address the issue of terrorist funding from trade in cultural property. Despite mounting evidence that such trade is not a significant source of terrorist funding, anti-trade interest groups and politicians have rushed to implement solutions to a problem that has, thus far, been undetectable in the US and EU.[2]
“Legislators seem to be very busy with drafting laws to combat cultural property crimes, combat IS and specifically the ways IS earns money. Legislators seem to be more occupied with the topic than law enforcement, but no unequivocal proof of huge revenues of the illegal trade in cultural property is found that could support such an active legislative role – besides political reasons. Large amounts of plundered items have not surfaced on Western (art) markets.”
Dutch Survey on Cultural Property War Crimes, Sept. 2016, section 14.2.3 page 65.
Unsupported claims of billions in terrorist revenue from the trade in antiquities have persuaded lawmakers here and in the EU to support legislative restrictions on broad categories of cultural property carrying civil and criminal penalties and authorizing more aggressive enforcement. There is no discussion. Dissenting voices are simply scolded into silence for being soft on terrorism. While we should consider all methods of fighting terrorism, we must not let fear or political agendas drive us to adopt measures that do more harm than good or which give only a false sense of security.
If cultural property policy making continues in this direction the impact on museums, their staffs, donors, trustees and, ultimately, their ability to serve the public will be permanent and severely damaging. In such an environment no set of internal policies will completely protect an institution from cultural property disputes or accusations. We can, however, operate transparently with clear ethical guidelines that support both the protection of cultural heritage and our ability to pursue our public mission. We must also fight for a seat at the policy making table and become an active part of the process rather than being victimized by it.
Wildly exaggerated claims of terrorist funding from the sale of artifacts[3] are so widespread that they are now accepted as facts.[4]
“Another study suggests that the total financial value of the illegal antiquities and art trade is larger than any other area of international crime except arms trafficking and narcotics and has been estimated at €2.5 – €5 billion yearly.”
For comparison, the 2017 TEFAF art market report estimated the entire 2016 EU antiquities market at just $66.7M and the entire US antiquities market at only $51.5M much of which was ancient art from Asia, in particular China,[5] and are having a profound effect on policy making. The US has passed into law new restrictions on Syrian artifacts and created a new investigatory committee.[6]
A new Council of Europe Convention on Offences relating to Cultural Property,[7] (Nicosia, May 2017), justified largely by discredited claims that antiquities sales are providing substantial funding for terrorists,[8] recognizes the laws of source countries as the exclusive means of determining an object’s legal status. The treaty, now referred to as the “Blood Antiquities” convention, provides for enforcement and criminal penalties based on these foreign laws regardless of whether they have been shown to be valid or constitutional within the signatory country or whether they are even enforced in the source country.
Once the treaty is codified into signatory country laws it will create substantial legal risks for museums, their staffs and the trade. As of Oct. 2017, only nine countries had signed, including Greece, Italy and Mexico, but the treaty has inspired a proposal for highly restrictive European Commission cultural property regulations containing many of the same features.[9] If approved, these regulations will take effect Jan. 1, 2019 after which source country laws will be used to determine whether an object can be imported, exported or sold.
Germany has enacted a controversial law[10] [11] requiring export licenses and proof of legal source country exportation and declares anything without proper documentation to be presumptively illegal. The Terrorism Art and Antiquity Revenue Prevention Act of 2016 (S.3449, TAAR Act) introduced in the US Senate, but now tabled, would have classified as stolen any cultural property over $50 in value removed in violation of the local laws of the source country and would empower the Dept. of Homeland Security to create a database and labeling system for Syrian and Iraqi artifacts.[12] Trump’s Presidential Memos and Executive Orders targeting ISIS and terrorism[13] [14]have encouraged proposals for more regulation, new enforcement initiatives and more criminal prosecutions.[15]
Initial claims of billions of dollars in terrorist funding from sales of artifacts were quickly challenged but this did not prevent them from being used to justify stricter regulation and enforcement. More recent studies[16] suggest revenue to ISIS may be no more than a few hundred thousand from sale of “excavation permits” within their, now rapidly shrinking, controlled territory. A lengthy study for the European Commission (June 2017),[17] conveniently published after the Nicosia Treaty, found no evidence of terrorist financing from cultural objects: “As shown from the surveys to the Member States’ administrations, hard evidence on the existence of these [trafficking] effects is currently often lacking.” (Section 3.8.4, page 120)
Lack of evidence, however, did not prevent the report from stating confidently that, “The illicit trafficking in cultural goods is generally recognized as one of the biggest criminal trades, notwithstanding the fact that there are few reliable quantitative data available on the matter. [SIC]” (Section 1.2, pg. 27) and recommending a broad international framework of restrictions to combat the presumed illicit activities.
In 2016 the US and EU antiquities markets totaled less than $120M combined[18] yet UN policy makers still believe ISIL by itself earns at least $100M per year from trade in antiquities[19] and have adopted UN Security Council Resolution 2347 calling for monitoring, enforcement and provenance requirements for trade in cultural property to fight terrorism.[20]
Recent testimony before Congress and Homeland Security at hearings: “The Exploitation of Cultural Property: Examining Illicit Activity in the Antiquities and Art Trade”[21] and “Following the Money: Examining Current Terrorist Financing Trends and the Threat to the Homeland”[22] also continue to cite sale of artifacts as a major source of terrorist funding claiming that individual objects sell for, “…as much as $1 Million…” and, despite lack of any evidence, implying that terrorists are directly participating at the highest levels of the antiquities market. Statements like this one, “…attacks such as the one in Paris cost approximately [only] $30,000 to finance”, are being used to justify virtual elimination of all trade in cultural objects while ignoring the known primary sources of funding and support for terrorist activities.[23]
In spite of a lack of credible evidence of any significant terrorist funding from cultural objects reaching the US, organizations like the “Antiquities Coalition” continue to argue for the elimination of all trade in antiquities as an effective means of fighting terrorism. Their motives are at best, opaque, but “Infographics” such as this one, https://theantiquitiescoalition.org/wp-content/uploads/2015/09/rsz_1rsz_1rsz_conflictantiquities_170713-01-1.png, make use of inflammatory terminology, e.g. “Cultural Racketeering” or “Blood Antiquities” , misleading statistics and imply terrorist links where none exist. For example, three allegedly smuggled objects are shown with million dollar plus valuations. No links to terrorism have been uncovered and all were out of their source countries long before the existence of ISIS. Yet, the estimated value of the objects is compared to the estimated cost of the Nov. 2015 terrorist attacks on Paris with the implication that every dollar had flowed into ISIS’ coffers. As the Dutch study on Cultural Property War Crimes concluded, “It would contribute to effective investigations if UNESCO, media agencies and other agencies [would] stop ‘hyping’ cultural property crimes……”[24]
Museums, Their Collections Policies and Their Public Mission
Reading this you could be forgiven for thinking that museums should just give up and close their doors. Museums take their public missions seriously and should be at the forefront of world cultural heritage preservation efforts. Instead, museums are being pushed aside as legislative efforts driven by a fear of terrorism create a nightmarish regulatory environment in which museums, their staffs, trustees and donors are often portrayed as villains. The landscape of potential risks, legal and reputational, for museums is complex, unpredictable and ever changing. It is safe to say that no collections policy, no matter how noble or how diligently implemented, can eliminate the possibility of becoming involved in a cultural property dispute. For museums, then, the challenge is to find and fight for a rational balance between our ethical responsibilities and our duty to pursue our public mission. There are risks. We may make mistakes or be accused of doing so. But ultimately, what matters most is how transparently we operate, how we acknowledge and correct mistakes, if they occur, and how committed and vocal we are in defending our ability to deliver on our public mission.
Is Museums’ Ability to Serve the Public At Risk?
Museums should be an essential part of any international effort to protect the world’s cultural heritage. But, as the focus of regulators has turned almost solely to defeating terrorism, museums have been marginalized and the goal of actually preserving world cultural heritage for future generations seems to be receding into the background.
The risks are real. By imposing retroactive requirements for source country export documentation the new Nicosia Treaty and German laws instantly create millions of orphaned objects already in the subject countries, which, after implementation, cannot be legally exported, sold, gifted or, in Germany, owned. What will happen to all those objects? How will museums or families feel about suddenly being deemed criminals simply for owning them? Should the US revive the TAAR Act, the same thing could happen here.
Criminal penalties recommended by the Nicosia Treaty probably sound good to voters worried about terrorism or concerned about cultural heritage preservation but does it really make sense to threaten museum staffers with jail time if they made a mistake in their provenance research? The new Nicosia Treaty strongly advocates for laws that say it’s a crime to make a mistake if you “should have known”.[25] Will museums decide to make no accessions at all rather than that take that kind of risk? And who will be willing to serve as a Trustee when it exposes them to the possibility of criminal prosecution?
In the absence of strong voices from the museum community we are permitting the creation of a world with less transparency leading to more cultural property abuses, millions of refugee objects and enormous risks for museum staff, trustees and collectors. We are in real danger of permanently damaging the ability of the museum system to serve the public and eliminating the opportunity for our society to view, understand and appreciate the World’s many diverse cultural and artistic traditions.
A Brief History of Cultural Property Regulation
Concern for preservation of world-wide cultural heritage became a priority in the wake of WWII. The Hague Convention protocol of 1954 and later in 1999 made clear that all countries have an obligation to protect cultural heritage during times of conflict but it was not until the UNESCO Treaty of 1970[26]that a serious attempt was made at international cooperation in the peacetime protection of cultural heritage. The US participated in the UNESCO Convention but did not implement it as US law, due to concerns that UNESCO’s “blank check” repatriation provisions would harm US museums and the public and conflict with other US laws
The US declined altogether to sign the UNIDROIT treaty (a corollary and more restrictive treaty). The year of the UNESCO convention, 1970, is often used as a standard for object provenance and has been adopted by the Association of Art Museum Directors (AAMD). However, it has no legal significance.
Limited provisions of UNESCO and UNIDROIT were later incorporated into US law and only these provisions can be enforced. Some of UNESCO’s goals, definitions, import restrictions and emergency restrictions were incorporated into the Convention on Cultural Property Implementation Act (CCPIA), which was made law in 1983.[27]
The Cultural Property Implementation Act: Is it Working?[28]
Since 1998 the DOS has failed to comply with transparency, reporting and other requirements of the CCPIA using “National Security” as an excuse for secrecy. DOS has further undermined the intent of the law by granting and renewing import restrictions (MOU’s) that do not meet the standards required by the law. In addition, DOS, with the help of the Dept. of Justice (DOJ), has gone beyond the scope of the CCPIA’s import restrictions by pursuing repatriation claims for objects based on foreign cultural property ownership laws and using a novel legal strategy. By simply taking the position that a foreign ownership law is valid, the DOJ can consider an object to be stolen property under the National Stolen Property Act of 1934, 18 U.S.C. §§ 2311, 2314–2315 (NSPA).[29]
If the DOJ chooses to use the CCPIA’s framework, it would then shift the burden of proof to the holder of the object and threatens them with criminal penalties.[30] They are then forced to show that the foreign laws are either invalid or do not apply. Since most of many thousands of foreign cultural property ownership laws[31] have never been tested in US courts, defending against repatriation claims can be costly, complicated, and risky no matter how frivolous the claim. The Archeological Resources Protection Act of 1979 (ARPA) has also been used to make claims against US holders based upon foreign laws, even though it was expressly intended, “to apply to archeological resources originating within the US…”[32]
Pre-1970 provenance, as recommended by the AAMD, may offer no protection against repatriation claims based on much older source country cultural property ownership laws.
On the bright side, the St. Louis Art Museum fought just such an attempt by the DOJ to force return of an ancient Egyptian mask based upon flawed foreign claims. In 2014 the courts affirmed, albeit on procedural grounds, a lower court’s ruling that the government had failed to plead sufficient facts to show the mask was stolen and St. Louis was granted both the right to keep the object and repayment of their legal fees.[33] The lower court described the Government’s case as, “an attempt to expand the government’s forfeiture powers at the likely expense of museums and good faith purchasers in the international marketplace for ancient artifacts”.[34]
The repurposing of arcane laws beyond their original intent is still fashionable among government agencies as a tool for extorting behavior from private individuals, businesses and institutions. The cost to museums and collectors can be overwhelming. As one commentator in the 2012 Sotheby’s-Cambodia Sculpture case observed, “The risk in a case like this is that the Government–even if it lacks any fair basis to proceed–can win simply by making the case more expensive to litigate than the property is worth.”[35] For museums, no collections policy can possibly anticipate how such tactics may be applied in the future or for what purpose.
Trends in Cultural Property Regulation and Enforcement
The debate over appropriate cultural property policy has always been politically and emotionally charged. Now, however, fear of terrorism has replaced genuine concern for preservation as the central focus of regulation. Inflated claims about the magnitude of the illicit trade in antiquities and its role in money laundering and financing terrorism[36] have prompted calls for stricter regulation and more resources for enforcement. Initial, headline grabbing, estimates of $7 Billion in ISIS’ revenue from antiquities were quickly discredited and have been steadily reduced. The most recent studies suggest it may be no more than a few hundred thousand dollars, largely confined to ISIS controlled territory.[37]
But, like fake news, the initial number has been repeated so often that it is not only accepted as fact, it is still being used, as it was recently by the European Commission, to justify draconian restrictions on the trade and ownership of cultural property.[38]
Fear of terrorism has also been used to justify new German and proposed European Commission regulations which rely on source country laws to determine an object’s legal status and whether they are eligible for export or import licenses. The German legislation enacted in 2016[39] requires export licenses for works of national significance or more than 75 years old and worth more than €300,000 within the EU, or for works just 50 years old and worth €150,000 exported outside the EU. All cultural property imports from UNESCO signatory countries must have proof of legal export from the country of origin.[40] Any object already in Germany but without proper documentation of export from a UNESCO signatory country prior to April 26, 2007 or from a non-signatory EU country prior to Dec. 31,1992 is presumed to be illegal and may be seized.
The new Nicosia treaty adopted in May of 2017 requires its signatories, if they are also a UNESCO signatory and Council of Europe member, to criminalize any intentional illegal act having to do with unlawfully provenanced cultural property as determined by the laws of the source country. One particularly alarming aspect of this Convention is that criminal penalties could apply retroactively to the acquisition, offering for sale, etc. of any unlawfully provenanced item by any person who knows or should have known of the unlawful provenance.[41]
In the US hearings on the now tabled TAAR act and recent terrorism task force testimony suggest that the US is also considering using foreign cultural property ownership laws to determine the legal status of objects entering or already in the US.[42]
It is a shocking but real possibility that US citizens and institutions could suddenly find themselves subject to thousands of foreign laws not even available in English which could be applied retroactively at the whim of government officials as may also be the case in the EU.
Modern works are also drawing attention as more countries test new theories of nationalized cultural patrimony. Legitimate claims from Holocaust victims or their families have, of course, resulted in the return of many works of art, often from museums, to their rightful owners. But, in 2015 Spain simply seized a Picasso painting, “Head of a Young Woman”, purchased legally in the UK in 1977 declaring it a “National Treasure.”[43]
No one is crying for the billionaire owner of the painting but the precedent for government seizure of legally acquired private property is unnerving. A number of countries have rolling year cultural property ownership laws, such as Italy’s 50 year ownership law, which allow them to “nationalize” privately owned works of art created within our lifetimes. Others have begun to nationalize art work by decree. Beginning in the 1940’s Mexico has, by decree, declared modern works by artists such as Frida Kahlo, Murillo, Rivera, Orozco, etc. to be Artistic or Historic Monuments, “….Whether Property of the Nation or Private Individuals,” thereby setting the stage for repatriation demands.[44]
Well-meaning efforts to protect endangered species, such as elephants, have also unintentionally jeopardized museum collections and their ability to make or accept loans for exhibits. For example, in July of 2015 US Fish and Wildlife Service blocked British Museum loans to US museums for exhibit of six Byzantine era ivory icons based on current ivory regulations.[45] Nearly all directors of museums with ivory in their collections have had difficult conversations with representatives of the Fish and Wild Life Service.
Several serious cases of smuggling such as the Kapoor[46] and Medici affairs have been successfully pursued but enforcement’s preference for high profile actions, such as the Elliot Ness style raids conducted during 2016 NYC Asia Week or Fish and Wild Life’s SWAT raids on Gibson Guitars in 2009 and 2011,[47] suggests they are more interested in high profile press coverage than in seeking cooperation to help stamp out illegal or destructive activities. This is unfortunate as it has created an atmosphere of fear bringing less transparency to the art markets when what we need is more. Enforcement has also relied increasingly on civil forfeiture actions to seize objects even when no crime has been proven[48] and customs continues to use administrative obstacles and minor paperwork errors as justifiable cause for seizing objects entering the country without having to prove they are in any way illegal.
Notes: Cultural Property Legislation References and Comments
The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention 1954
1954 and 1999 protocols provide protections for cultural property during military operations and for repatriation of cultural property exported from an occupied territory at the close of hostilities.
The US signed the convention in the 1950’s but Cold War considerations prevented ratification until 2008.
Convention Text: http://portal.unesco.org/en/ev.php-URL_ID=13637&URL_DO=DO_TOPIC&URL_SECTION=201.html
Protocol I (1954) http://portal.unesco.org/en/ev.php-URL_ID=15391&URL_DO=DO_TOPIC&URL_SECTION=201.html
Protocol II (1999) http://portal.unesco.org/en/ev.php-URL_ID=15207&URL_DO=DO_TOPIC&URL_SECTION=201.html
UNESCO Treaty of 1970 – Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property
First effort to stop illicit trade in cultural property through international cooperation. It provides broad requirements for repatriation of cultural property by “market countries” (e.g. Article 7(b)(ii). It also outlines requirements for self-protection of their cultural property by “source countries” (e.g. Article 6).
The 1970 Convention was never ratified in its entirety by the US due largely to conflicts with existing interests in the museum community and art trade.[49] The UNESCO Treaty itself has no independent force of law in the US. However, certain provisions of the 1970 Convention were adopted as part of the Convention on Cultural Property Implementation Agreement (CCPIA) passed by Congress in 1983. These were mainly the definitions of cultural property, the import restrictions of Article 7(b)(1) and Article 9 authorizing emergency and renewable import restrictions on virtually all cultural property of a source nation upon request by that nation and international cooperation in response to an emergency.
The 1970 date is often used as a benchmark for object provenance but in the US it has no legal meaning since UNESCO is an international treaty without force of law in the US.[50] But even for countries which have ratified UNESCO, it is the date of ratification that matters not the date of the Convention, and since UNESCO is not self-implementing, signatory nations must adopt domestic legislation to make UNESCO enforceable in those countries. In addition, in the US, claims based on source country cultural property ownership laws and the NSPA have made the 1970 date largely irrelevant.
UNIDROIT Convention of 1995 – Convention on Stolen or Illegally Exported Cultural Objects (Rome 1995)
The UNIDROIT Convention is a corollary treaty to the 1970 UNESCO treaty with 41 contracting States not including the United States. It attempts to establish a legal framework for the return of stolen or illegally exported cultural property with some protections for “good faith buyers” but gives source countries a “blank check” to designate whatever they wish as cultural property subject to repatriation.
UNESCO Database of National Cultural Heritage Laws[51]
Many thousands of cultural property laws of individual countries have been submitted for inclusion by the countries themselves. Even so, it is far from a complete listing and expresses no opinions on validity or accuracy of English translations, when available. Analysis of the laws of even a single country is daunting. Panama alone lists 107 different laws from 1920 to the present. Cambodia lists 18 including several prior to its independence from France in 1953. However, the Department of Justice can use any country’s laws, whether listed or not or available in English against US persons or institutions under the NSPA or ARPA in an attempt to repatriate cultural property.
Convention on Cultural Property Implementation Act of 1983 (CCPIA)[52]
This is the primary US law governing treatment of cultural property and is effectively the US implementation of the UNESCO 1970 Convention. It is a very thoughtful piece of legislation initially administered by USIA until abolition of USIA in 1998 after which it was transferred to the Cultural Heritage Center of the US Dept. of State.
Provides for emergency import restrictions and for Bilateral MOU’s establishing 5 year import restrictions on listed categories of cultural property with individual countries who can demonstrate that an emergency exists and that they have implemented the required internal self-help remedies. A total of 16 Bilateral MOU’s have been issued, 5 between 1983 and 1998 under USIA and 11 since the handoff to Dept. of State. Only one, Canada, has been allowed to expire. A chart is available here – http://eca.state.gov/files/bureau/chart-of-import-restrictions.pdf
Provides clear rules for legal ownership of and importation of cultural property, ie. Not stolen and exported from source country prior to effective date of MOU or exported from source country at least 10 years prior or in the US for more than 20 years.
Establishes the Cultural Property Advisory Committee (CPAC) to recommend emergency actions, new MOU’s and renewals.
text – http://eca.state.gov/files/bureau/97-446.pdf
Emergency Protection for Iraqi Cultural Antiquities Act of 2004 (S. 1291) Codified as 19 CFR 12.104j
This addition to the Code of Federal Regulations extended the provisions of the CCPIA to allow President Bush to unilaterally establish import restrictions on Iraqi cultural property until normalization of relations.
Protect and Preserve International Cultural Property Act of 2016 (HR1493 and S1887) Enacted May 9, 2016.
Established emergency import restrictions for Syrian artifacts and a Committee Chair with power to convene enforcement agencies, DOS, DOJ and the Smithsonian for purposes of coordination. A limited safe harbor provision is provided requiring the President to certify to Congress that allowing an object entry into the USA will not in any way aid terrorist organizations.[53]
National Stolen Property Act of 1934 (NSPA)
The NSPA extended the National Motor Vehicle Theft Act of 1919 (NMVTA) to criminalize knowing interstate or foreign transport of nearly all forms of stolen property worth more than $5,000. (This amount has never been indexed for inflation.) More recently the NSPA has been interpreted to cover cultural property of foreign origin simply as another form of “property”.
The NSPA’s broad definition of the term “stolen” has been interpreted to include any cultural property removed without the permission of the source nation. Once the source nation has adopted a law that vests ownership of all cultural property in the state, any export constitutes theft under the National Stolen Property Act. The object must originate from the country making the claim, the alleged theft must have occurred after the date of the cultural property law, and the defendant must be aware that a foreign nation has claimed ownership through its legislation.
This repurposed interpretation of the NSPA has become the prosecuting law of choice in the US, completely overshadowing the more balanced Convention on Cultural Property Implementation Act. In US vs McClain in 1979 and US vs Schulz in 2002 [note]United States v. Schultz, 178 F. Supp. 2d 445 (S.D.N.Y. 2002), aff’d 333 F.3d 393 (2d Cir. 2003), cert. denied 124 S. Ct. 1051 (2004).[54]
In 1986 Congress added knowing “possession” to the criminalized activities further expanding the ability to use foreign cultural property ownership laws against US persons and institutions in attempts to repatriate cultural property.[55]
For an interesting discussion see – https://coast.noaa.gov/data/Documents/OceanLawSearch/Summary%20of%20Law%20-%20National%20Stolen%20Property%20Act.pdf?redirect=301ocm
Archeological Resources Protection Act of 1979 (ARPA)
The original intent of this law was and is to protect American Indian archeological material originating on US public lands but it has been repurposed by the Dept. of Justice to apply to foreign archeological materials anywhere in the US. According to their logic, export from a foreign country with a cultural property ownership law renders an archeological object stolen.
Since it is a violation of state law to receive stolen property it is, therefore, a violation of a single ARPA section 470ee(c), which fails to include the reference to public lands contained in all other relevant provisions of the law. While ARPA has been used as a negotiating tool to encourage defendants in NSPA cases to plead guilty to a lesser offense, courts have not dealt with the obvious contradictions in applying ARPA to foreign art.[56]
Ivory, Endangered Species and other Environmental Regulations
Well-meaning legislation to protect the “Big Five” African Species has led to a proliferation of Federal and State legislation often with severe unintended consequences for antiques and other works of art. As of May 2016 legislation was pending in 17 states including DC and Maryland.
For example, New York Bill SB4686 would criminalize possession of all objects containing ivory that have not received a certificate of possession from the NY Secretary of State for each object, a laborious and expensive process. (This Bill actually passed the NY House in 2015 before being returned to committee.) The Maryland Bill HB713 has no exemptions for musical instruments, antiques or commercial use and would criminalize “possession with intent to sell”.
While there are now federal exceptions for ‘ESA’ antiques and musical instruments, other federal and state laws affecting ivory such as the AECA result in a multi-layered and sometimes contradictory set of rules. Basically, import of ivory for commercial purposes is not allowable, but interstate trade and export of antique ivory is possible under limited circumstances, and traveling exhibitions may proceed under other exceptions.[57]
Numerous other endangered species regulations enforced by Fish and Wildlife Service are impacting the legal status of art objects sometimes with almost comical results. For example, in 2007 heirs of New York art dealer Ileana Sonnabend inherited a 1959 Modernist work by Robert Rauschenberg, “Canyon”, which contained a stuffed bald eagle. The 1940 Bald and Golden Eagle Protection Act makes it a felony to possess, sell, purchase, etc. any bald eagle alive or dead. So, the estate appraisers valued the work at zero since it would be illegal to ever sell it. The IRS, however, disagreed valuing it at $65M and demanding payment of $29.2M in taxes and over $11M in penalties!
Germany – Act on the Protection of Cultural Property Act, 6 August 2016
Slightly diluted from its initial draft, this new German law essentially makes any object illegal that does not have documentation that it was legally exported from the source country prior to April. 26, 2007. It also requires licenses for export within the EU anything of significance, without establishing standards for significance, or for anything over 75 years old or €300,000 in value. License requirements for export outside the EU apply to anything 50 years old or over €150,000 in value. Required documentation for import or export includes proof of legal export from the source country.
https://www.bundesregierung.de/Content/DE/_Anlagen/BKM/2016/2016-09-23-kulturgutschutz-informationen-englisch.pdf?__blob=publicationFile&v=2
http://www.congreso.es/docu/docum/ddocum/dosieres/sleg/legislatura_12/spl_3/pdfs/22.pdf
Council Regulation (EC) No 116/2009 of 18 December 2008 on the export of cultural goods
Requires export licenses for most cultural goods going outside the EU. License requirements are vague. Value thresholds are established for different categories, eg. Engravings worth more than €15,000; Statuary worth more than €50,000; Paintings worth more than €150,000.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:039:0001:0007:en:PDF
127th Session of the Committee of Ministers (Nicosia, 19 May 2017)
Council of Europe Convention on Offences relating to Cultural Property
Requires Member States and other States who sign to establish criminal laws in the signatory states to enforce violations of export laws in other states. Criminalizes virtually any intentionally unlawful act relating to cultural property.
However, it also criminalizes certain actions, such as acquisition, offering for sale, etc., by any person who knew or should have known that the object in question was not properly provenance. The question of whether a person should have known is notorious for its subjectivity and puts any knowledgeable person at great risk when acquiring or selling and object. Since the question of legality is determined by difficult to interpret source country laws all objects are at risk as are all purchasers or sellers.
https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=0900001680704b30
HR2285 – The Prevent Trafficking in Cultural Property Act
Passed the House of Representative only on 9/22/16, would have established an interagency coordinator with convening power to coordinate enforcement agencies actions. Required reporting to congress.
https://www.congress.gov/bill/114th-congress/house-bill/2285
S3449 – Terrorism Art and Antiquity Revenue Prevention Act of 2016, (TAAR Act)
Failed to pass in the Senate in 2016. Would have reduced the threshold for prosecution under the NSPA from $5,000 to $50. Objects would be considered stolen based on an analysis of source country local export laws regardless of their validity or constitutionality in the US. This would undermine the distinction between national ownership laws and local export laws making US citizens, businesses and institutions subject to an impenetrable maze of often contradictory local foreign laws and guilty until proven innocent. Directs DOJ, DOS DHS to come up with a means of inventorying and a labeling method for Iraqi and Syrian artifacts and to establish a database containing information on all cultural property. Directs DHS to establish provenance documentation requirements for Iraqi and Syrian cultural property, which can, obviously, be extended easily to any category of cultural property. These provisions raise serious privacy issues and constitutional issues and would open the door to costly repatriation claims against virtually anyone or anything. But who wants to be the test case?
https://www.congress.gov/bill/114th-congress/senate-bill/3449/text
Enforcement
Enforcement is a blunt instrument and not necessarily effective in stopping cultural property crimes or in actually preserving cultural heritage. However, once empowered, agencies know how to make good use of dramatic enforcement actions and press coverage to justify their budgets. Transparent markets with an appropriate mix of incentives and disincentives are what’s needed but we seem to be headed in the opposite direction. The trend is to use a variety of legal strategies to shift the burden of proof, making the holder of an object guilty until proven innocent.
The CCPIA authorizes Dept. of Homeland Security (DHS) and Customs Border Patrol (CBP) to enforce the import restrictions created under the CCPIA. Examples of the restricted materials are shown on the State Dept. website. http://eca.state.gov/cultural-heritage-center/cultural-property-protection
Needless to say, customs agents aren’t experts and enforcement is variable. If an object just looks like it might be from a country with import restrictions it may be seized. Then the burden of proof shifts to the owner/importer to prove the object is legitimate. To get the object back the owner will have to overcome endless bureaucratic obstacles. Minor paperwork errors have been used by Customs to retain the object indefinitely. Unless the object is extremely valuable it’s generally not worth contesting the seizure.
Enforcement agencies are also keenly aware that good press is good protection for their budgets. High profile seizures such as those at Asia Week in March of 2016 are newsworthy. The Fish and Wildlife Service is likewise fond of publicly crushing seized ivory items with bulldozers and made headlines with their 2009 and 2011 Gibson Guitars raids over alleged violation of laws of India and Madagascar protecting certain species of woods.
Meanwhile the Dept. of State and Dept. of Justice working together have been successful in repurposing laws such as the NSPA and ARPA to support repatriation claims based on largely untested foreign cultural property ownership laws.
The threat of criminal prosecution and the high costs of mounting a defense are usually enough to persuade the owner of an object to just turn it over. Press coverage typically vilifies the owner while praising the Dept. of State for reuniting the people of (insert name of source country here) with a precious piece of their cultural heritage. Much like the value of seized drugs the reported value of the repatriated objects is wildly inflated to help justify the application of more governmental resources to such efforts. With more than a hundred potential source countries and many thousands of foreign cultural property ownership laws there’s a lot of material to work with and almost any important object is at risk of repatriation claims.
Civil Forfeiture has been much in the news for abuses of the technique by police departments who get to keep or sell whatever they seize.[58] Although some reforms have been made, in most states and under federal law no crime need be proved for a civil forfeiture to proceed. [59] This technique has become a popular tool for seizing cultural property, particularly in New York State where the standard of evidence required is quite low.[60]
In addition to more obvious abuses, civil forfeiture of cultural property using foreign laws to invoke the “contrary to law” provisions of the customs forfeiture statute, section 1595a and triggering application of the NSPA raises complex legal and possibly constitutional questions. This somewhat lengthy monograph has excellent summaries and discussion of notable cultural property cases including the Honduran “Moon Rock” case on page 370 in “Civil Forfeiture, Customs Law, and the Recovery of Cultural Property”, Kyle Brennan, DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 25, Issue 2, Spring 2015.[61]
Finally, new methods for law enforcement to coerce the surrender of property purchased in good faith without due process seem to be appearing with alarming regularity. In two recent New York cases,[62] private owners were ‘persuaded’ not to contest the seizure of antiquities alleged to be stolen upon threat of criminal prosecution under a 1965 New York law originally intended to prevent pawn brokers from acting as fences for stolen goods. Section 165.55 (2) of the New York Penal Code[63] says that “A collateral loan broker or a person in the business of buying, selling or otherwise dealing in property who possesses stolen property is presumed to know that such property was stolen if he obtained it without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess it.” The NY District Attorney’s office believes this statute is applicable to art dealers and high volume collectors and can be used to file criminal charges based on allegations that an object may be stolen as determined by the laws or claims of the source country. What constitutes “reasonable inquiry” is not specified.
Footnotes
[1] About the Author: Matthew Polk is president of the Historic Textile Research Foundation, a current and former trustee of several museums and a board member of the Committee for Cultural Policy and the Global Heritage Alliance. The Historic Textile Research Foundation. The Historic Textile Research Foundation is a private operating foundation committed to the creation of a research database including radiocarbon dating information on historically significant textiles.
[2] http://iadaa.org/wp-content/uploads/2016/05/Cultural-Property-War-crimes-and-Islamic-State-2016.pdf, See also an excellent discussion in the New Yorker, Dec. 2015, https://www.newyorker.com/news/news-desk/the-real-value-of-the-isis-antiquities-trade and Neil Brodie July 2016, http://www.marketmassdestruction.com/trafficking-out-of-syria/. The Center for Analysis of Terrorism found less than 1% of ISIS funding came from “Antiques” in 2015, pg. 7, http://cat-int.org/wp-content/uploads/2016/06/ISIS-Financing-2015-Report.pdf
[3] Inside ISIS’ Looted Antiquities Trade: “…why $7 billion fell to $4 million in public discussions about the ISIS antiquities trade.” https://theconversation.com/inside-isis-looted-antiquities-trade-59287
[4] Q&A on proposed European Commission regulations, http://europa.eu/rapid/press-release_MEMO-17-1954_en.htm
[5] http://www.nck.pl/media/attachments/319100/TEFAF-Art-Market-Report-20173_DjHDZMC.pdf
[6] H.R.1493 – Protect and Preserve International Cultural Property Act https://www.congress.gov/bill/114th-congress/house-bill/1493
[7] 127th Session of the Committee of Ministers, (Nicosia, 19 May 2017) Council of Europe Convention on Offences relating to Cultural Property https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=0900001680704b30
[8] Dutch Survey on Cultural Property War Crimes, Sept. 2016 http://iadaa.org/wp-content/uploads/2016/05/Cultural-Property-War-crimes-and-Islamic-State-2016.pdf
[9] https://ec.europa.eu/taxation_customs/sites/taxation/files/cultural_goods_proposal_en.pdf
[10] http://www.loc.gov/law/foreign-news/article/germany-act-to-protect-cultural-property-passed/
[11] Note that as of 2008 exports of nearly all cultural property to non-EU countries already require licenses, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:039:0001:0007:en:PDF
[12] TAAR Act https://www.congress.gov/bill/114th-congress/senate-bill/3449/text
[13] https://www.whitehouse.gov/the-press-office/2017/01/28/plan-defeat-islamic-state-iraq
[14] https://en.wikisource.org/wiki/Executive_Order_13773
[15] Comprehensive Strategy to Destroy ISIS Act of 2017 https://www.congress.gov/bill/115th-congress/house-bill/1785/text
[16] The Dutch study is the most comprehensive yet. “Based on this study it can be concluded that the topic is ‘hyped’. It is a strategic political topic that is presented bigger than it is in reality.” Pg. 6, http://iadaa.org/wp-content/uploads/2016/05/Cultural-Property-War-crimes-and-Islamic-State-2016.pdf See page 63-65 for summary and conclusions.
[17] Fighting illicit trafficking in cultural goods: analysis of customs issues in the EU, June 2017, page 120, https://ec.europa.eu/taxation_customs/sites/taxation/files/annex_08_dg_taxud_study_fighting_illicit_trafficking_in_cultural_goods_en.pdf
[18] TEFAF Art Market Report 2017, pg. 78 http://www.nck.pl/media/attachments/319100/TEFAF-Art-Market-Report-20173_DjHDZMC.pdf
[19] Conference call with Hans-Jakob Schindler, Coordinator of the ISIL, Al-Qaida and Taliban Monitoring Team of the UN Security Council, Oct. 3, 2017.
[20] http://undocs.org/S/RES/2347 (2017), https://committeeforculturalpolicy.org/terrorism-cultural-heritage-and-the-threat-to-museums-public-missions/#_edn22
[21] http://docs.house.gov/committee/calendar/ByEvent.aspx?EventID=106166]
[22] https://homeland.house.gov/hearing/following-money-examining-current-terrorist-financing-trends-threat-homeland/
[23] http://thehill.com/policy/defense/255442-us-offers-5-million-reward-to-stop-isis-from-plundering-antiquities. No one has yet claimed the reward.
[24] See section 15.1, page 65, http://iadaa.org/wp-content/uploads/2016/05/Cultural-Property-War-crimes-and-Islamic-State-2016.pdf
[25] See Chapter II, Article 7-2 and Article 8-2, http://www.coe.int/en/web/conventions/full-list/-/conventions/rms/0900001680710435
[26] Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property – 1970 http://www.unesco.org/new/en/culture/themes/illicit-trafficking-of-cultural-property/1970-convention/
[27] In contrast to the UNESCO Convention’s “blank check” approach to repatriation claims the CCPIA provides a thoughtful framework for the protection of world-wide cultural heritage as well as clear rules for legal trade in cultural property. Administration of the CCPIA was given to the US Information Agency (USIA) instead of to the Dept. of State (DOS) as the drafters worried that DOS would use the law to grant diplomatic favors to client states. However, after the abolition of USIA in 1998 administration of the CCPIA was handed over to the Cultural Heritage Center of DOS where the drafters worst fears appear to have been realized.
[28] 19 U.S.C. §§ 2601-13. The CCPIA implements on Article 7(b)(1) and Article 9 of the 1970 UNESCO Convention. See http://culturalpropertyobserver.blogspot.com/2011/03/cultural-property-implementation-act-is.html and Resolving the Disjunction Between Cultural Property Policy and Law A Call for Reform, Andrew L. Adler* & Stephen K. Urice** http://www.rutgerslawreview.com/wp-content/uploads/archive/vol64/Adler_&_Urice_Macro%20Version.pdf and Steven Vincent, “Stealth Fighter: The Secret War of Maria Kouroupas,” Art & Auction 63 (March 2002)
[29] The NSPA was intended to facilitate recovery of stolen automobiles across state lines by criminalizing “knowing possession” of stolen property.
[30] For a comparison of the CPIA’s burden-shifting mechanism, see 19 U.S.C. § 2609(b)(2).
[31] UNESCO Database of National Cultural Heritage Laws http://www.unesco.org/new/en/culture/themes/illicit-trafficking-of-cultural-property/unesco-database-of-national-cultural-heritage-laws
[32] Resolving the Disjunction Between Cultural Property Policy and Law A Call for Reform, Andrew L. Adler & Stephen K. Urice at 136–138. http://www.rutgerslawreview.com/wp-content/uploads/archive/vol64/Adler_&_Urice_Macro%20Version.pdf
[33] http://committeeforculturalpolicy.org/st-louis-art-museum-prevails-in-ka-nefer-nefer-mummy-mask-case/
[34] Id.
[35] See United States v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby’s, 12 Civ. 2600 (GBD) (S.D.N.Y. 2013);http://culturalheritagelawyer.blogspot.com/2012/12/the-government-now-relies-on-inherent.html
[36] See for example: ]Just what is Isil looting in Syria? by DAN DURAY | The Art Newspaper, 26 August 2015. “Previous reports by respected outlets including Bloomberg have put the value of the cultural looting by Isil at around $300m, and Iraq’s United Nations ambassador said the group earns $100m each year from such activity. But the value of the entire international antiquities market is only between $150m to $200m, says Vincent Geerling, the head of the International Association of Dealers in Ancient Art.” http://www.artsjournal.com/realcleararts/2016/01/antiquities-and-isis-something-doesnt-add-up.html See also http://chasingaphrodite.com/2014/11/18/dantis-inference-the-known-unknowns-of-isis-and-antiquities-looting/, and http://committeeforculturalpolicy.org/debunking-the-isis-antiquities-funding-myth/
[37] Dutch Cultural Property War Crimes Study, http://iadaa.org/wp-content/uploads/2016/05/Cultural-Property-War-crimes-and-Islamic-State-2016.pdf See pages 63-65 for summary and conclusions.
[38] From the July, 13, 2017 Press release on new EU restrictions: “Another study suggests that the total financial value of the illegal antiquities and art trade is larger than any other area of international crime except arms trafficking and narcotics and has been estimated at €2.5 – €5 billion yearly.” No source is given, but for comparison the 2017 TEFAF Art Market Report found the 2016 EU antiquities market to be $66.7M, the US antiquities market only $55.5M and the Chinese antiquities market $295M almost entirely composed of Chinese antiquities. http://www.nck.pl/media/attachments/319100/TEFAF-Art-Market-Report-20173_DjHDZMC.pdf
[39] Key aspects of the new Act on the Protection of Cultural Property in Germany http://www.congreso.es/docu/docum/ddocum/dosieres/sleg/legislatura_12/spl_3/pdfs/22.pdf
[40] http://www.apollo-magazine.com/is-the-german-cultural-property-protection-act-to-be-welcomed/
[41] 127th Session of the Committee of Ministers (Nicosia, 19 May 2017) Council of Europe Convention on Offences relating to Cultural Property. https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=0900001680704b30
[42] Hearing: “The Exploitation of Cultural Property: Examining Illicit Activity in the Antiquities and Art Trade” http://docs.house.gov/committee/calendar/ByEvent.aspx?EventID=106166
[43] http://www.nytimes.com/2015/08/06/arts/spain-says-bankers-seized-picasso-will-head-back-home.html
[44] ”Search “Mexico” in the UNESCO database of cultural property laws, http://www.unesco.org/culture/natlaws/. A nice summary of the requirements imposed by the Mexican decrees, http://www.gtlaw-culturalassets.com/2014/11/in-love-with-diego-or-frida-a-brief-look-at-mexican-art-regulations/
[45] https://news.artnet.com/exhibitions/ivory-artworks-denied-entry-us-313792
[46] https://www.nytimes.com/2015/07/26/arts/design/the-ultimate-temple-raider-inside-an-antiquities-smuggling-operation.html
[47] http://www.npr.org/sections/therecord/2011/08/31/140090116/why-gibson-guitar-was-raided-by-the-justice-department
[48] A nice summary of several cases and the questions they raise, see http://via.library.depaul.edu/cgi/viewcontent.cgi?article=1007&context=jatip
[49] The UNESCO Convention on Cultural Property: A Drafter’s Perspective – Mark B. Feldman, Panel: International Trade in Ancient Art and Archeological Objects, ABA Section of International Law, Spring Meeting – New York City, April 15, 2010.
[50] For example, the AAMD’s Guidelines recommends that museums only acquire antiquities that were legally exported prior to 1970.
https://aamd.org/sites/default/files/document/AAMD%20Guidelines%202013.pdf.
[51] http://www.unesco.org/new/en/culture/themes/illicit-trafficking-of-cultural-property/unesco-database-of-national-cultural-heritage-laws
[52] Text https://www.law.cornell.edu/uscode/text/19/chapter-14
[53] It is unlikely that a sitting president would ever risk making such a blanket representation.
[54] The courts upheld that foreign cultural property ownership laws could be used as the basis for prosecution under the NSPA. United States v. McClain, 593 F.2d 658 (5th Cir. 1979), cert. denied, 44 U.S. 918 (1979)
[55] Stephen K. Urice, Between Rocks and Hard Places: Unprovenanced Antiquities and the National Stolen Property Act, 40 N.M. L. Rev. 123 (Winter 2010)
[56] Resolving the Disjunction Between Cultural Property Policy and Law A Call for Reform, Andrew L. Adler* & Stephen K. Urice** Section II. http://www.rutgerslawreview.com/wp-content/uploads/archive/vol64/Adler_&_Urice_Macro%20Version.pdf, see also https://www.nps.gov/subjects/historicpreservation/laws.htm
[57] http://fitzgibbonlaw.com/understanding-ivory-law/
[58] http://ij.org/report/policing-for-profit/ and http://www.heritage.org/crime-and-justice/report/civil-asset-forfeiture-good-intentions-gone-awry-and-the-need-reform and http://www.newyorker.com/magazine/2013/08/12/taken
[59] http://www.heritage.org/crime-and-justice/report/overview-recent-state-level-forfeiture-reforms
[60] A mere preponderance of evidence standard is used against criminal defendants. NY C.P.L.R. § 1311(3).
[61] http://via.library.depaul.edu/cgi/viewcontent.cgi?article=1007&context=jatip and Civil Forfeiture, Customs Law, and the Recovery of Cultural Property”, Kyle Brennan, DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 25, Issue 2, Spring 2015 http://via.library.depaul.edu/cgi/viewcontent.cgi?article=1007&context=jatip
[62] https://news.artnet.com/art-world/met-museum-looted-bulls-head-1039790, and https://www.nytimes.com/2017/10/19/arts/design/a-remnant-from-caligulas-ship-once-a-coffee-table-heads-home.html?_r=0
[63] http://codes.findlaw.com/ny/penal-law/pen-sect-165-55.html
