|
UNESCO Convention Under Fire
|
June 10, 2000
|
|
The Archaeological Institute of America (AIA), ARCHAEOLOGY Magazine's
parent organization, has taken a strong stand against legislation to
amend
the 1983 Convention on Cultural Property Implementation Act, which
implemented in U.S. law the 1970 UNESCO Convention on the Means of
Prohibiting the Illicit Import, Export and Transfer of Ownership of
Cultural Property. Under the 1983 law, foreign governments have been
able
to request U.S. assistance in stopping the looting of archaeological
sites
in their countries through emergency import restrictions and bilateral
agreements. Democratic senators Patrick Moynihan and Charles Schumer,
both
of New York, have innocuously titled bill, "The Cultural Property
Procedural Reform Act" (S. 1696) to amend the 1983 law. According to
Moynihan, the need for the amendments "arises from the recent
proliferation
of import restrictions imposed on archaeological and ethnological
artifacts
from a number of countries, including Canada and Peru. Restrictions may
soon be imposed on imports from Cambodia, and I am told that the
Government
of Italy has now requested that the United States impose a sweeping
embargo
on archaeological material dating from the 8th century B.C. to the 5th
century A.D." In a letter to William Roth (R-DE), chairman of the
Senate
Finance Committee, AIA President Nancy wrote, "The AIA strongly opposes
this bill, which would drastically restrict the ability of the Cultural
Property Advisory Committee to implement effectively the 1970 UNESCO
Cultural Property Convention. If enacted, the amendments would put the
world's cultural patrimony, including our own country's, in greater
jeopardy of pillage."
The full text of the Archaeological Institute of America's comment on
the
Cultural Property Procedural Reform Act (S. 1696) follows. Links to the
text of the act and comments by Senator Moynihan and Senator Schumer,
as
well as contact information for them and for Senator Roth may be found
at
the end of this document.
S. 1696: THE CULTURAL PROPERTY PROCEDURAL REFORM ACT
Comments submitted to the Senate Committee on Finance
by the Archaeological Institute of America
May 29, 2000
The Archaeological Institute of America (AIA) is the largest
archaeological
organization in the United States, with over 11,000 professional and
avocational members participating in 100 local chapters throughout the
country. Founded in 1879 and chartered by an Act of Congress in 1906,
it is
dedicated to the preservation of the world's archaeological resources
and
the information they contain, and to the encouragement and support of
archaeological research and publication. Among its public and
educational
programs, the AIA publishes ARCHAEOLOGY Magazine, with a circulation of
210,000 and an estimated half million readers.
Introduction
S. 1696 seeks to amend the Convention on Cultural Property
Implementation Act (CCPIA), passed by Congress in 1983, which makes the
United States a party to the 1970 UNESCO Convention on the Means of
Prohibiting and Preventing the Illicit Import, Export and Transfer of
Ownership of Cultural Property. The AIA has supported the objectives of
the
UNESCO Convention since the earliest stages of its drafting and was an
active participant in the efforts that led to the passage of U.S.
implementing legislation. The AIA now strongly opposes these proposed
amendments. By nullifying the restraints on the international trade in
stolen and illicitly exported cultural property established by the
CCPIA,
passage of S. 1696 would increase the demand for looted objects,
increase
pillage of archaeological sites and thereby rob humanity of its past.
The 1970 UNESCO Convention establishes an international cooperative
framework aimed at combating the trade in stolen and illicitly exported
artifacts. While theft is an obvious crime and one addressed by various
domestic legislation, the AIA's concerns go beyond the unauthorized
appropriation of another's property. Archaeological sites are a
non-renewable resource that are part of the world's cultural heritage.
The
market in illicitly exported antiquities is overwhelmingly supplied
by-and
indeed stimulates-the plundering of archaeological sites. When sites
are
looted so that individual artifacts may be obtained illicitly for the
art
market, the scientific, cultural, and historical information which is
contained in those sites is lost forever. This loss of knowledge about
past
human life far outweighs the loss of individual objects; the CCPIA was
enacted to help prevent this destruction of cultural patrimony.
Far from being a "clarification" of the CCPIA or a "reform" to
improve the effectiveness of its procedures, as claimed by its
proponents,
the proposed amendments in S. 1696 would drastically undermine United
States participation in the international regime established by the
UNESCO
Convention. The changes to the CCPIA that would be imposed by the
passage
of S. 1696 would create insurmountable obstacles that would
severely limit U.S. participation in these international protective
measures and jeopardize the U.S.'s standing to receive reciprocal
protection for its own rich and diverse cultural heritage. It would
mire
the Cultural Property Advisory Committee (CPAC), established under the
CCPIA, in a morass of impractical, costly, and unproductive procedural
requirements, and it would effectively convert the CPAC into a haven
for
special interests. In short, S. 1696 would radically alter the current
policies of our country, which encourage protection of our national
cultural patrimony and respect for that of other nations.
Senator Moynihan, in introducing S. 1696, stated that "the need for
this bill arises from the recent proliferation of import restrictions
imposed on archaeological and ethnological artifacts from a number of
countries." In fact, these import restrictions demonstrate that the
CCPIA
is functioning as was intended, to help protect the threatened cultural
patrimony of countries around the world and thus preserve it for future
generations. Far from creating "embargoes" on the exchange of cultural
property, as has been claimed by groups having an interest in
maintaining
the unfettered "anything goes" atmosphere of the art trade, the CCPIA
is
helping to make long needed distinctions between the legal, documented
trade and that fueled by illicit and clandestine sources. The
provisions of
the CCPIA, as being carried out by the Executive Branch, are helping to
establish a regime of international trust and cooperation that actually
encourages loans and exchanges among museums, technical assistance,
cultural tourism, and academic exchange and interaction.
The true interests of the American public are best served by the
development and expansion of such a cooperative regime, not by an
unfettered and exploitative international antiquities trade operating
without regard for local laws. Millions of Americans throughout the
country
have been enriched by the opportunity to view extensive and magnificent
traveling loan exhibitions, such as the recent "Gold of the Nomads:
Scythian Treasures from Ancient Ukraine" and "Royal Tombs of Sipán"
from
Peru. Such comprehensive presentations of ancient cultures-only
possible
through international cooperation-increase Americans' understanding of
the
ancient past to an extent that cannot be rivaled by a single artifact,
no
matter how magnificent, that has been torn from its ancient context.
Moreover, the number of citizens who benefit from these cooperative
exchanges far exceeds the number of those who benefit from the trade in
undocumented antiquities.
The protection of archaeological heritage-both domestically and
abroad-has been a matter of American policy as early as 1906, when the
federal Antiquities Act was passed. In its domestic legislation and
through
the ratification of international treaties devoted to the cultural
heritage, the United States has long supported efforts to protect and
preserve archaeological sites and objects. This policy is firmly
supported
by American public opinion. A recent poll by Harris Interactive
exploring
public attitudes toward archaeology, released in March of this year,
revealed that 96% of Americans believe there should be laws to protect
archaeological sites. Most relevant to the proposed legislation is
the
strong majority (90%) that thinks laws should prevent import of
artifacts
from a country that does not want them exported. It is important to
reiterate that this response concerns export laws and not national
ownership laws, so the respondents were not considering the
implications of
theft. In a similar vein, a total of 92% of respondents thought that
museums and individuals should not be able to buy archaeological
objects
from abroad if they were taken out of the country of origin without the
country's permission. These responses suggest that the provisions of
the
CCPIA currently in effect and being administered under the Department
of
State enjoy nearly universal support among the American public.
The adverse provisions of S. 1696 include the following:
I. Inappropriate and harmful public disclosure
Sections 2(a) and 3(c) of S. 1696 would require public disclosure
of numerous types of information that the CCPIA deemed necessary to
protect
as confidential. Congress, in exempting many of the procedures under
the
CCPIA from public disclosure, judged that disclosure of this
information
could be harmful to the intended effects of the Act. Our particular
concern
is that revealing the details of a foreign nation's request for
relief-which must include a full description of the problem of looting
and
threats to its cultural heritage-would provide a detailed "road map"
for
the looters themselves. With the prospect that future restrictions may
be
imposed, the illicit trade can only be encouraged to intensify its
efforts
in the meantime, thus increasing pillage-the opposite of what the CCPIA
is
intended to accomplish.
In the adoption of the CCPIA, Congress made no distinction between
"fact-finding" and "deliberative" "phases" of the work of the Cultural
Property Advisory Committee, but rather envisioned a unified
"investigation
and review" (Section 306(f)(1)), later referred to as "proceedings"
(Section 306(h)), which were exempted from the public disclosure
provisions
of the Federal Advisory Committee Act. S. 1696's effort (Section 2(b))
to
divide the work of the CPAC into separate "phases," one of which would
be
fully open to the public, would serve only to disclose sensitive and
potentially harmful information which Congress has previously seen
sufficient cause to protect. Federal Register notices of a foreign
nation's
request now include a brief summary of the material included in the
request: in our view, this is sufficient.
The publication of the CPAC's findings and recommendations, as
called for by Section 2(a) of S. 1696, before an agreement has been
negotiated or emergency restrictions imposed could alert the looters
and
smugglers as to what material may soon be protected and thus stimulate
the
trade in those particular cultural materials, thus defeating the very
purpose of the CCPIA. We believe an opportunity for comment on the
CPAC's
recommendation after the Committee has completed its work is
unnecessary:
the time for public comment is before the CPAC makes its
recommendations,
not after, so that any comments may be taken into account by the
Committee
as it deliberates. Such publication and comment would also intervene in
and
subvert the Committee's role as advisor to the President and interfere
with
the Executive Branch's conduct of foreign policy. It could also be
detrimental to the preservation of cultural property in the United
States
in cases where the negotiation of a bilateral agreement would involve
the
reciprocal protection of American sites.
The AIA strongly supports a process by which all interested parties
have the opportunity to express their views on particular cases. It
believes, however, that the procedures currently being followed by the
Cultural Property Advisory Committee allow for ample public
participation
(both during the initial consideration of a foreign request and during
subsequent reviews of existing agreements). For more than two years,
open
public sessions have been held in relation to the consideration of all
foreign requests, reviews of current agreements, and extensions of
existing
agreements (these include requests from Cyprus, Cambodia, Bolivia,
Italy,
and El Salvador). All who wished to speak have been provided full
opportunity at these meetings, and interested parties were also invited
to
submit unlimited written materials for the Committee's information. In
addition, the CPAC consults extensively with a broad range of
knowledgeable
individuals who may be able to provide information relevant to the
request
under consideration. Suggestions of knowledgeable individuals who might
be
consulted in this manner are welcomed by CPAC.
It is indeed ironic that the loudest calls for greater "openness"
on the part of the Cultural Property Advisory Committee have come from
the
art market. The art trade traditionally operates in total secrecy,
routinely refusing to reveal even the most basic information that would
be
openly disclosed in any other legitimate business or type of commerce.
Recent scandals concerning price fixing among major auction houses have
provided a glimpse into this closed world. If those who trade in
ancient
art were to reveal publicly the sources of the objects they buy and
sell,
the problem of the illicit trade in stolen and looted antiquities would
rapidly vanish.
II. Limitations on important and relevant evidence from consideration
in
the deliberative process
Section 2(c)(2) of S. 1696 would limit the use of "historical"
evidence of pillage in the CPAC's deliberations, which would severely
restrict the Committee's use and consideration of the evidence
presented.
All information, by the time it comes to light, is "historical," since
the
events have already taken place. The clandestine nature of
archaeological
pillage ensures that some interval of time has elapsed before it is
brought
to light: like any crime, the perpetrator intentionally carries out his
activities in a manner that attempts to elude detection. The vagueness
and
lack of definition of what constitutes "historical" evidence and the
failure to specify what would not constitute historical evidence-and
thus
be valid for use in the CPAC's deliberations-would simply make this
standard unworkable and forestall the Committee from taking any action
at
all.
Considered even more broadly, the historical background of pillage
is also directly relevant to the current state of a country's cultural
heritage and thus should be an integral part of the deliberations of
the
CPAC, especially in determining whether the cultural patrimony of the
requesting country is "in jeopardy from pillage." If a substantial
portion
of the archaeological heritage of a nation has already been lost in the
past, even moderate levels of looting would constitute a serious
threat,
and it becomes even more critical to preserve the little that remains.
III. Complex and excessive review procedures
The problems of international trafficking in illicitly acquired
artifacts and the archaeological plunder that supplies this trade are
complex, long-standing, and deep-seated social ills. The CCPIA was
never
envisioned as a "quick fix." When it was passed, all parties recognized
that change would be gradual and incremental. Agreements were to be
monitored on "a continuing" basis; when import restrictions
automatically
expire at the end of the initial period of agreement-a maximum of five
years-full review is required before renewal. In the lengthy
discussions
that went into producing the final version of the CCPIA, considerable
attention was given to the time limits for agreements and renewals. The
period of five years was agreed to by all parties: it was anticipated
that
this was an adequate amount of time to begin to see effects of the
measures
taken under an agreement (and recognized that a shorter period might
not be
adequate), while at the same time requiring full review at reasonably
short
intervals.
The requirement of Section 2(d) that agreements be subject to full
review "annually" would expend countless hours and enormous resources
in
looking for the needle in the haystack. To carry out the burden of such
a
requirement would necessitate vastly increased staffing and overhead
costs.
Without the commitment of these substantial new resources, the body
charged
with carrying out U.S. obligations under the CCPIA would no longer be
able
to carry out its responsibilities. Thus the amendments proposed by S.
1696
would not improve the procedures of the CCPIA but make them unworkable
and
paralyze the Committee. The existing provisions of the CCPIA have
proven in
practice to be effective and appropriate and should be retained in
their
current form.
IV. Weakened composition of the Cultural Property Advisory Committee
As one of the organizations most active in supporting legislative
initiatives to implement the UNESCO Convention and a strong supporter
of
the resulting CCPIA, the AIA regrets the current lack of dealer
representation on the Cultural Property Advisory Committee and would
encourage the Executive Branch to appoint qualified individuals to
those
positions as soon as possible. We agree that art trade participation is
vital to the successful functioning of the CPAC as was intended by the
CCPIA. However, we also note that the current absence of dealer
representation is due at least in part to recent voluntary
resignations,
and we do not believe that a boycott of the Committee is the most
effective
way of improving its procedures.
S. 1696 (Section 3(a)) proposes to change the requirement that
appointees to the CPAC should "be expert in" the fields of archaeology,
anthropology, and ethnology, and in the international sale of cultural
property, to the much less rigorous qualification that they merely
"represent" these fields. This change means that CPAC members would no
longer be required to have the expertise in these fields which is
necessary
for the judicious review and decision making that must be carried out
by
the Committee. Instead of the objective investigation and review
stipulated
by the CCPIA, the deliberations of the Committee would become a
partisan
political debate among special interests.
Section 3(b) would remove members of the Cultural Property Advisory
Committee from the conflict-of-interest provisions to which special
government employees are subject. However, the CPAC plays an important
role
related to matters of international sensitivity: it is entirely
appropriate
that its members should work under restrictions designed to insure that
propriety-as well as the appearance of propriety-are maintained. The
conflict-of-interest provisions contained in the CCPIA continue to play
a
vital role, for example, when potential Committee members have a direct
and
significant financial stake in the types of transactions under
consideration by the Committee. Also, one need only recall the event
of a
few years ago, when a member of the CPAC was sued by the Government of
Greece for return of a collection of antiquities that he was offering
for
sale, to appreciate the need to preserve the integrity of the Committee
and
forestall a situation in which a Committee member may embarrass the
President who appointed him/her.
At the time S. 1696 was introduced, Senator Schumer stated, "The
entire CPAC is designed to be a conflict of interest . . ." The AIA
strongly disagrees. The CPAC is composed of members who have the
various
kinds of expertise and divergent interests involved in the
international
exchange of archaeological and ethnological materials. The Committee's
composition is designed to balance these areas of expertise and
interests,
but surely the fundamental mission of the individual members is to
objectively, and fairly, "undertake an investigation and review" of
requests made by States Parties to the UNESCO Convention. Senator
Schumer
is referring to the balancing of interests among committee members that
is
an essential part of the CCPIA when he referred to "conflict of
interest."
That is not the same as the possible conflict-of-interest that
individuals
may have in their capacity as CPAC members. The conflict-of-interest
rules
are therefore essential to maintain the integrity of the Committee.
V. Deviation from the terms of the international agreement which the
CCPIA
is intended to implement
Article 9 of the UNESCO Cultural Property Convention, which the
CCPIA implements for the United States, begins, "Any State Party to
this
Convention whose cultural patrimony is in jeopardy from pillage of
archaeological or ethnological material may call upon other States
Parties.
. ." Thus under the terms of the Convention, cultural patrimony is
considered as a whole, a complex of related features within a
particular
cultural context, of which individual objects are only a part.
Section 2(c)(1) of S. 1696 would change the CCPIA to refer instead
to "particular objects of the cultural patrimonyS in jeopardy from
pillagingS" (emphasis added), an entirely different concept. It is not
the
individual objects that are in jeopardy: indeed, when objects are
looted
for the international trade, some may be individually well protected,
since
their salability depends upon their state of preservation. But when
artifacts are removed from their cultural context-whether that be an
archaeological site or a historical monument-the cultural patrimony as
a
whole is irremediably damaged. The aim of the UNESCO Convention is to
protect a nation's cultural patrimony as a whole, which is damaged when
pillaging occurs.
The phrase "particular objects of the cultural patrimony" is also
unclear and, in the absence of a definition of "particular objects" may
be
construed to mean specific, individual objects rather than particular
types
or categories of objects. This narrow meaning would restrict the
coverage
of the CCPIA to individual looted objects-for example, a specific Maya
polychrome vessel-rather than to categories of objects or sites (e.g.,
objects of the Maya culture from the Petén region of Guatemala). Such a
narrow focus would make it extremely difficult for the United States to
assist foreign countries to protect their cultural patrimony in
accordance
with the UNESCO Convention.
The UNESCO Convention is a reciprocal agreement among 91 current
State Parties. The United States, through its implementation under the
CCPIA, is entitled to cooperation and assistance from all other State
Parties in the protection of our own cultural heritage, which is also
threatened by theft and destruction to supply the international art
trade.
This carefully crafted regime should not be jeopardized by the
ill-advised
amendments contained in S. 1696, which would severely undermine the
ability
of the United States to play a positive role in protecting the world's
cultural heritage for the future.
Summary
The Archaeological Institute of America urges the Senate Finance
Committee to reject these amendments. If S. 1696 were enacted, it
would
put the world's cultural patrimony, including our own country's
precious
archaeological and ethnological heritage, in greater jeopardy of
pillage.
It would diminish the United States' ability to fulfill its treaty
obligations under the 1970 UNESCO Convention. It would overwhelm the
CPAC
in an administrative and bureaucratic quagmire. S. 1696 does not
serve
the public interest but rather serves only to further the narrow
financial
interests of those involved in the illicit art trade.
If, however, the Committee decides to consider these amendments
further, we request that public hearings be held, given the complexity
of
the issues involved. Public hearings would allow the AIA and other
concerned organizations and individuals to express their views in a
more
substantive and public manner.
© 2000 by the Archaeological Institute of America archive.archaeology.org/online/news/unesco2.html |