By Maria Papageorge Kouroupas
It has been 28 years since the adoption by UNESCO of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export or Transfer of Ownership of Cultural Property. Fifteen years have passed since the United States become the 55th nation to join the convention, then the only major art-importing country to do so.
Ratification of the convention was the strongest U.S. response to an international problem—the pillage of cultural objects from their context and the illicit trade of such objects. It is still the strongest national response, even though the problem has not diminished over time. Rather, according to Interpol, it now ranks with drugs and arms as one of the three most serious illicit international trading activities, valued at approximately $4.5 billion annually. At the time of the convention's ratification, the United States was the world's largest art market. With recent figures from the Art Sales Index showing that over 45 percent of the dollar value of the world's auction sales is conducted in the United States, it still holds that distinction.
Has there been any improvement in the international effort to ameliorate pillage and illicit trade in cultural objects? Given the evidence, one could argue that there has not.
Filmed documentation shows Malian peasants shoveling the earth for Djenné terra-cottas to supply the pipeline out of Africa to Europe and the United States. In an interview several years ago in Vanity Fair magazine, the former owner of a major U.S. hockey team and a founder of ancient coin trading partnerships admitted that the ancient hoards were "'fresh'—that is, fresh out of the ground—stolen or illegally excavated and smuggled out of Mediterranean countries such as Turkey and Italy." Not long ago, a tourist was arrested in Athens for taking a chisel to the Parthenon to remove a keepsake. Recently, too, several Roman-Byzantine mosaics, each weighing a ton, were sawed and pried out of their original context in Syria; intended for the U.S. market, they were shipped to Canada, where they were seized by authorities. Particularly troubling was the ransacking of the Kabul Museum in Afghanistan and the selling off of its treasures, many of which had been scientifically excavated. The stakes seem so high and the gain so great that homicide, theft, bribery, fraud, and money laundering have become crimes associated with the unauthorized movement of cultural property.
While one might wonder whether much has changed over the years, there are significant developments worth noting. The UNESCO Convention itself remains viable and continues to attract new parties. Thirty-three countries have joined since the U.S. became a party, bringing the total to 88. With France's ratification in 1997, the United States is no longer the only major art-importing country to implement this international treaty. The Swiss government, in public statements and as a result of domestic review of its constitution, now signals its intention to ratify the convention. As U.S. ratification gave art source countries new recourse, so will French and, prospectively, Swiss participation create more opportunities for international cooperation. In filing its ratification, France announced its commitment to encourage other European nations to become party to the treaty.
The hardline resistance of art-importing countries to confront illicit trade seems to be losing its edge. Continued international outrage at the growing pace of trade in stolen and illicitly exported cultural objects led to the creation in 1995 of another convention on stolen or illegally exported cultural objects, this one put forth by the International Institute for the Unification of Private Law in Rome. Of the art-importing countries, France, Switzerland, and the Netherlands have signed this treaty. In the United States, the Customs Service, increasingly vigilant, recovers cultural objects illicitly transported in personal luggage, in large shipping containers, in Federal Express packages, and even in news wrap, a technique previously used to conceal illicit drugs.
Today, numerous countries—Turkey, Greece, Cyprus, Mexico, Bolivia, Peru, Guatemala, Burma, and Thailand among them—are increasingly emboldened to file legal actions in U.S. courts to recover pillaged objects representing their national patrimony. Many of these countries have been successful with these efforts.
While there has not been a sea change in the acquisitions policies of American museums, there is incremental change. More individual institutions are adopting higher standards for acquiring unprovenanced objects—the most recent being the Getty Museum. Under this policy, which establishes November 10, 1995, as a threshold date, recently looted material may not find a home at the Getty Museum. Since museums are on the receiving end of benefactors, such policies would encourage more collectors to document their purchases and publish their collections, enhancing the opportunity for drawing the net around objects already out of context and making it easier to control present-day looting. The Smithsonian Institution in Washington, D.C., also adheres to a threshold date, as do the Museum of the University of Pennsylvania in Philadelphia and other research-oriented museums, such as the Field Museum of Natural History in Chicago, and the American Museum of Natural History in New York City.
The U.S. Role
The enabling legislation ratifying U.S. participation in the 1970 UNESCO convention was based on the following statement of national policy: "There has been an expanding trade in archaeological and [ethnological] artifacts deriving from clandestine activities and excavations that result in the mutilation of ancient centers of civilization. . . . The appearance in the United States of important art objects of suspicious origin has often given rise to outcries and urgent requests for return. The United States considers that, on grounds of good foreign relations and motivated by ethical and moral principles, it should render assistance."
How does the U.S. enabling legislation work? It is intended to be a deterrent, not the solution to illicit trade. It is a framework for providing import restrictions and is intended to reduce the incentive for pillage, thereby enhancing opportunities for scientific research at undisturbed sites and enabling countries to discourage pillage while they pursue long-term strategies for protecting their cultural heritage.
U.S. implementation is applied only on a country-by-country basis. A country that is party to the 1970 convention may make a case for U.S. import restrictions by preparing and submitting to the United States a request that seeks restrictions on certain categories of archaeological or ethnological material. To the extent information is known to the requesting country, such a request should offer background regarding the national cultural patrimony and how it is in jeopardy from pillage; it should provide information about what internal protective measures have been put in place; it should indicate the significance of the U.S. market for the material in question; and it should say why U.S. import restrictions would be in the best interest of the international community for educational, cultural, and scientific purposes.
Each request is evaluated through an advisory and decision-making process. If granted, the protection of import restrictions is prospective only, being an instrument for preventing future losses to the archaeological record rather than an instrument for interdiction. If a request is approved, a list of restricted objects is published in the Federal Register by the Customs Service. Such objects may come into the United States if accompanied by an export certificate issued by the country of origin. The restriction is not intended to apply to objects already out of the country of origin at the time the list is published.
The United States Information Agency (USIA) is the agency largely responsible for implementing U.S. participation in the UNESCO convention. It administers the Cultural Property Advisory Committee and carries out most of the president's executive responsibilities under the enabling legislation. Requests for U.S. protection have been received from Canada, El Salvador, Bolivia, Peru, Guatemala, Nicaragua, and Mali. All requests are reviewed by the committee, whose 11 members (among them GCI director Miguel Angel Corzo) are appointed by the president (they include archaeologists, experts in the international sale of art, and representatives of museums and the general public). The committee's recommendations are submitted to the head of the USIA, who, on behalf of the president, renders decisions.
Depending on how one defines success, one could say that U.S. implementation of the convention has been very successful—although not necessarily from the perspective of interdiction. If illicit trade is inherently clandestine, how can we possibly know whether no interdiction means that restricted material is not coming in or that it is successfully being smuggled in, only to surface in later years? How, then, can we speak of success?
Sipán, the remarkable Moche archaeological site on the coast of Peru, is an example. U.S. emergency action with respect to Sipán has stabilized the situation of pillage. Systematic archaeology is taking place there, uncovering more tombs and adding to our knowledge of the Moche culture; modern museum exhibition space is being created for the excavated objects; access to the material by the general public has been made possible by an international traveling exhibition; and the resident archaeologist has provided the local population (including the original looters) the opportunity to develop an appreciation for the ancestral importance of the site. They have come to understand the long-term economic benefit to their community of a protected archaeological park that attracts visitors from around the world. Peru's National Congress passed legislation declaring the conservation, protection, and promotion of the archaeological patrimony of Sipán to be of national importance. Added to this success is the recovery by U.S. Customs of Sipán objects advertised for auction in New York. The objects ultimately were repatriated to Peru.
Another example can be found in Mali, which, in the opinion of some, represents the most egregious case of cultural depredation. Mali, the third-poorest country in the world, has the second-greatest concentration of archaeological sites in Africa. U.S. emergency action under the convention may not have achieved an end to pillage and illicit trade, but important internal changes can be noted. Mali reports that it has initiated a policy of photodocumentation as part of its export authorization program and has taken legal steps to tighten control over the antiquarians. Most important, Mali's National Museum has undertaken public education initiatives that include dispatching cultural missions to teach local populations to understand and manage their own cultural heritage. Archaeologists working in Djenné report a dramatic drop in pillage and note changes in the local attitude toward this activity. Radio and television broadcasts about U.S. efforts to help Mali have raised international awareness about the problem, particularly in Europe.
Under the UNESCO convention and the U.S. Cultural Property Implementation Act that ratified it, bilateral cooperation between the United States and several countries in the Western Hemisphere has stimulated interest in regional collaboration in Central America that recognizes that cultural boundaries are not aligned with modern national boundaries. At the 1994 Summit of the Americas, the protection of cultural heritage was adopted as a major action item. All nations of the Americas agreed to "work with hemispheric governments to enhance appreciation of indigenous cultures and cultural artifacts through the implementation of cultural property protection agreements."
For the United States, the first of these agreements was with El Salvador. Signed in 1995, it applies import restrictions on pre-Hispanic archaeological objects originating in El Salvador. Beyond that, the agreement addresses long-term initiatives that both countries agree must be pursued. These initiatives include technical assistance in cultural resource management and security to El Salvador; the encouragement of academic and nongovernmental institutions and other organizations to cooperate in the interchange of knowledge and information about the cultural patrimony of El Salvador; a pledge by El Salvador to expedite the registration of cultural property in public and private collections and to initiate programs to educate the public about its laws and the importance of protecting archaeological sites; a pledge to rebuild El Salvador's national museum, destroyed by earthquake; and, finally, a pledge to strengthen cooperation within Central America for the protection of the cultural patrimony of the region. There is no question that in only a few years, this agreement has been exceedingly successful in all its aspects.
The agreement with El Salvador demonstrates that a cultural property agreement is not solely a means for restricting the flow of cultural objects across international borders. It is also a gateway to strategic planning and to initiatives that protect cultural resources.
Toward that end, the U.S. Cultural Property Advisory Committee has developed guidelines for long-term strategic planning for use by prospective requesting countries. These guidelines provide an opportunity for a requesting country to initiate a self-assessment of what it has or has not done to establish sustainable cultural resource management. The guidelines emphasize public education, conservation, research, and the development of a national museum system, as well as of regional and local museums. They are meant to encourage planning and initiatives and to inform the committee about the level of commitment of the requesting country to protect its cultural patrimony. This document will stimulate the search for enlightened approaches to the protection of cultural property—and will also, no doubt, focus attention on accountability.
In 1996 the Getty Conservation Institute hosted a historic meeting in Los Angeles of the Cultural Property Advisory Committee and ministers of culture from Central American countries to learn of regional initiatives under way and to stress the importance of full participation by Central America within the UNESCO convention framework. Among the Central American countries, consensus emerged that they should work with the United States to restrict the unauthorized flow of cultural objects across boundaries; that public education is essential to foster a change in the national attitude toward protection of cultural patrimony; that linkage with environmental protection is vital; that cultural resources are a sustainable economic asset; and that, as in the case of Sipán, Peru, the past represents the future.
We are increasingly confronted with the reality that laws are not the ultimate solution to the problem of pillage and illicit trade. They are, however, a vital tool that supports a change in the way we perceive the importance of our cultural heritage and in how we, the living stewards of our nonrenewable past, care for it.
Maria Papageorge Kouroupas is executive director of the Cultural Property Advisory Committee, administered by the United States Information Agency. This article is based on a presentation she gave at the Getty Conservation Institute in observance of International Museum Day in 1997.